[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]




PROTECTING THE PROTECTORS: AN ASSESSMENT OF FRONTLINE FEDERAL WORKS IN 
               RESPONSE TO THE SWINE FLU (H1N1) OUTBREAK

=======================================================================

                                HEARING

                               before the

                   SUBCOMMITTEE ON FEDERAL WORKFORCE,
                    POSTAL SERVICE, AND THE DISTRICT
                              OF COLUMBIA

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 14, 2009

                               __________

                            Serial No. 111-3

                               __________

Printed for the use of the Committee on Oversight and Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                   EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania      DARRELL E. ISSA, California
CAROLYN B. MALONEY, New York         DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland         JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio             JOHN L. MICA, Florida
JOHN F. TIERNEY, Massachusetts       MARK E. SOUDER, Indiana
WM. LACY CLAY, Missouri              TODD RUSSELL PLATTS, Pennsylvania
DIANE E. WATSON, California          JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts      MICHAEL R. TURNER, Ohio
JIM COOPER, Tennessee                LYNN A. WESTMORELAND, Georgia
GERRY E. CONNOLLY, Virginia          PATRICK T. McHENRY, North Carolina
MIKE QUIGLEY, Illinois               BRIAN P. BILBRAY, California
MARCY KAPTUR, Ohio                   JIM JORDAN, Ohio
ELEANOR HOLMES NORTON, District of   JEFF FLAKE, Arizona
    Columbia                         JEFF FORTENBERRY, Nebraska
PATRICK J. KENNEDY, Rhode Island     JASON CHAFFETZ, Utah
DANNY K. DAVIS, Illinois             AARON SCHOCK, Illinois
CHRIS VAN HOLLEN, Maryland
HENRY CUELLAR, Texas
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
PETER WELCH, Vermont
BILL FOSTER, Illinois
JACKIE SPEIER, California
STEVE DRIEHAUS, Ohio
------ ------

                      Ron Stroman, Staff Director
                Michael McCarthy, Deputy Staff Director
                      Carla Hultberg, Chief Clerk
                  Larry Brady, Minority Staff Director

Subcommittee on Federal Workforce, Postal Service, and the District of 
                                Columbia

                    STEPHEN F. LYNCH, Massachusetts
ELEANOR HOLMES NORTON, District of   JASON CHAFFETZ, Utah
    Columbia                         JOHN M. McHUGH, New York
DANNY K. DAVIS, Illinois             JOHN L. MICA, Florida
ELIJAH E. CUMMINGS, Maryland         MARK E. SOUDER, Indiana
DENNIS J. KUCINICH, Ohio, Chairman   BRIAN P. BILBRAY, California
WM. LACY CLAY, Missouri
GERRY CONNOLLY, Virginia
                     William Miles, Staff Director













                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 14, 2009.....................................     1
Statement of:
    Bonner, T.J., president, National Border Patrol Council, 
      American Federation of Government Employees, AFL-CIO; and 
      Colleen Kelley, national president, National Treasury 
      Employees Union............................................    63
        Bonner, T.J..............................................    63
        Kelley, Colleen..........................................    84
    Galassi, Thomas, Director, Technical Support and Emergency 
      Management, Occupational Safety and Health Administration; 
      David Weissman, Director, Division of Respiratory Disease 
      Studies, National Institute for Occupational Safety and 
      Health, Centers for Disease Control and Prevention; Nancy 
      Kichak, Associate Director, Strategic Human Resources 
      Policy Division, U.S. Office of Personnel Management; and 
      Elaine Duke, Under Secretary for Management, U.S. 
      Department of Homeland Security............................    17
        Duke, Elaine.............................................    44
        Galassi, Thomas..........................................    17
        Kichak, Nancy............................................    37
        Weissman, David..........................................    26
    O'Brien, Thomas F., MD, vice president, Global Alliance for 
      the Prudent use of Antibiotics, and director microbiology 
      laboratory, Brigham and Women's Hospital, Boston, and 
      associate professor of medicine, Harvard Medical School; 
      and Jeffrey Levi, Ph.D., executive director, Trust for 
      America's Health, and Associate Professor, Department of 
      Health Policy, George Washington University................   104
        Levi, Jeffrey............................................   113
        O'Brien, Thomas F........................................   104
Letters, statements, etc., submitted for the record by:
    Bonner, T.J., president, National Border Patrol Council, 
      American Federation of Government Employees, AFL-CIO:
        Information concerning AFGE..............................    65
        Prepared statement of....................................    71
    Chaffetz, Hon. Jason, a Representative in Congress from the 
      State of Utah, letter dated April 30, 2009.................    10
    Duke, Elaine, Under Secretary for Management, U.S. Department 
      of Homeland Security, prepared statement of................    46
    Galassi, Thomas, Director, Technical Support and Emergency 
      Management, Occupational Safety and Health Administration, 
      prepared statement of......................................    19
    Kelley, Colleen, national president, National Treasury 
      Employees Union, prepared statement of.....................    86
    Kichak, Nancy, Associate Director, Strategic Human Resources 
      Policy Division, U.S. Office of Personnel Management, 
      prepared statement of......................................    39
    Levi, Jeffrey, Ph.D., executive director, Trust for America's 
      Health, and Associate Professor, Department of Health 
      Policy, George Washington University, prepared statement of   115
    Lynch, Hon. Stephen F., a Representative in Congress from the 
      State of Massachusetts:
        Prepared statement of....................................     6
        Prepared statement of Hon. Bennie G. Thompson............     2
    O'Brien, Thomas F., MD, vice president, Global Alliance for 
      the Prudent use of Antibiotics, and director microbiology 
      laboratory, Brigham and Women's Hospital, Boston, and 
      associate professor of medicine, Harvard Medical School, 
      prepared statement of......................................   107
    Weissman, David, Director, Division of Respiratory Disease 
      Studies, National Institute for Occupational Safety and 
      Health, Centers for Disease Control and Prevention, 
      prepared statement of......................................    28

 
PROTECTING THE PROTECTORS: AN ASSESSMENT OF FRONTLINE FEDERAL WORKS IN 
               RESPONSE TO THE SWINE FLU (H1N1) OUTBREAK

                              ----------                              


                         THURSDAY, MAY 14, 2009

                  House of Representatives,
Subcommittee on Federal Workforce, Postal Service, 
                      and the District of Columbia,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:30 p.m., in 
room 2154, Rayburn House Office Building, Hon. Stephen F. Lynch 
(chairman of the subcommittee) presiding.
    Present: Representatives Lynch, Connolly, Chaffetz, and 
Bilbray.
    Staff present: William Miles, staff director; Marcus A. 
Williams, clerk/press secretary; Jill Crissman, professional 
staff member; Jill Henderson, detailee; Dan Blankenburg, 
minority director of outreach/senior advisor; Adam Fromm, 
minority chief clerk/Member liaison; Ashley Callen, minority 
counsel; and Molly Boyl, minority professional staff member.
    Mr. Lynch. Good afternoon. The Subcommittee on the Federal 
Workforce, Postal Service, and the District of Columbia hearing 
will now come to order.
    I want to welcome our ranking member, Mr. Chaffetz of Utah, 
members of the subcommittee, hearing witnesses, and all those 
in attendance.
    As you may know, the purpose of today's hearing is to 
examine the status of Federal agencies' occupational safety and 
health protocols that are responsible for protecting Federal 
workers from communicable diseases such as the H1N1 virus, also 
known as the swine flu.
    The Chair, ranking member, and subcommittee members will 
each have 5 minutes to make opening statements. And all Members 
will have 3 days within which to submit statements for the 
record.
    At this time, I would like to ask unanimous consent for the 
testimony of the chairman, Benny Thompson, of the Homeland 
Security Committee to be entered into the record. Hearing no 
objections, it is so ordered.
    [The prepared statement of Hon. Bennie G. Thompson 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Lynch. I will take a moment before we introduce the 
first panel just to make a brief introductory statement.
    In the wake of the H1N1 flu outbreak--we hope it is the 
wake--this afternoon's hearing has been convened to examine and 
discuss current Federal worker safety protections and policies. 
As Chair of the Federal Workforce Subcommittee, it is my 
responsibility to ensure the health and safety of our Federal 
employees, especially frontline Federal workers who are tasked 
with the awesome job of keeping the American public safe and 
healthy.
    While we have all seen the headlines, have read various 
reports on H1N1, or swine flu, cases, today's hearing is 
especially intended to review existing policies at key Federal 
agencies relating to employee precautionary behavior and the 
use of PPE, personal protective equipment. Entitled 
``Protecting the Protecters: An Assessment of Frontline Federal 
Workers in Response to the H1N1 Outbreak,'' today's proceedings 
will provide our agency witnesses an opportunity to elaborate 
on their own respective responses to the H1N1 virus outbreak.
    And today's hearing also affords us the chance to enter 
into a dialog about the implementation of future policies that 
would govern and lay out the rights of frontline workers to 
access and don protective gear during a time of potential 
crisis. This is especially noteworthy since most of our medical 
experts express the opinion that, next fall, we could see a 
resurgence, or an echo of sorts, of the H1N1 virus but in a 
more lethal form.
    Be it the result of a public health emergency or a manmade 
disaster, since 9/11 our country, as a whole, has awakened to 
the need for ongoing emergency preparedness. Subsequently, 
Federal agencies have been charged with drawing up a variety of 
disaster scenarios so that our government can respond 
effectively and swiftly in time of crisis. However, all one has 
to do is recall the horrific events following Hurricane Katrina 
on the Gulf Coast to be reminded that much work in the area of 
emergency preparedness and continuity of government remains to 
be done.
    In addition to the work needed to ensure the public safety, 
it is essential that agencies implement adequate and uniform 
worker protection policies for the employees who protect the 
Nation as part of their daily duties.
    Amidst the general emergency response, planning efforts 
undertaken by agencies to safeguard the public, sufficient time 
must be devoted to develop and execute sensible policies aimed 
at securing the health and safety of the very employees who 
will be called upon to respond in the event of an emergency. 
Without such policies, not only is the health of frontline 
workers being put at risk, but the health of their families and 
the communities in which they live and the general welfare of 
the public is also placed at risk.
    In short, the Federal Government cannot ably respond to 
emergencies if the very personnel needed as part of that 
response are, themselves, compromised. Frontline Federal 
workers, their families, the communities where they reside and 
where their kids go to school deserve to be reassured that 
their employer, the Federal Government, which, in this case, we 
are responsible for, has done everything possible to guarantee 
their protection while on the job.
    I would like to thank the witnesses in advance for their 
willingness to appear and testify as we take a hard look into 
what is being done and what is not being done to keep our 
frontline Federal workers safe.
    This concludes my opening statement, and I now yield to our 
ranking member, Mr. Chaffetz.
    [The prepared statement of Hon. Stephen F. Lynch follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. Chaffetz. Thank you, Chairman Lynch, for holding this 
important hearing on ``Protecting the Protectors: An Assessment 
of Frontline Federal Workers in Response to the Swine Flu 
(H1N1) Outbreak.''
    I also want to thank the witnesses for taking time out of 
their busy schedules to testify before the subcommittee, and 
appreciate your understanding and flexibility given the series 
of votes that we need to participate in. We do appreciate your 
time and your attention, your being prepared for this, and I 
want to thank you so much for your participation.
    As Federal workers across all sectors have been involved in 
the response to the medical emergency, it is crucial that the 
proper protocols are in place to protect these workers. The 
health of Americans depends on a healthy Federal work force. I 
hope our witnesses can give us insight into the current 
response to the H1N1 epidemic and help us assess where we have 
succeeded and where we have failed.
    As a result of the threats from SARS and the avian 
influenza, former President George W. Bush issued the National 
Strategy for Pandemic Influenza on November 1, 2005. The 
strategy guides the Nation's readiness and response to flu 
pandemics and has given direction to the Federal, State, and 
local governments on how to respond in the wake of the current 
H1N1 flu outbreak.
    A key part of the strategy, ``is to sustain infrastructure 
and mitigating impact to the economy and the functioning of 
society.'' That is exactly what we are here to talk about 
today.
    Although a pandemic cannot damage physical infrastructure, 
such as roads and powerlines, the way other catastrophic events 
might, it can cripple an organization through impact on the 
organization's human resources and prevent it from completing 
its essential functions. When that organization is the Federal 
Government, the consequences can be dire.
    Planning for the protection of Federal workers from illness 
and also for continuity of operations should a large enough 
number of employees get sick is essential. A strong Federal 
response to a pandemic is the key to mitigating the severity of 
the illness and loss of life and for the easing of potential 
devastating effects that an outbreak or pandemic flu can have 
on our Nation's economy.
    Personnel policies must reflect the twofold goal of keeping 
our Federal workers healthy and therein ensuring continuity of 
operations. Providing protective gear, updating telework and 
other social distancing policies, and implementing health 
information technology are valuable parts of the pandemic flu 
strategy. These tools allow Federal agencies to continue their 
important roles in responding to an emergency.
    Recently, it was brought to my attention that the 
Department of Homeland Security, while issuing written guidance 
to protect its employees, is not, in fact, executing the 
guideline on the front lines. Managers, I am told, are 
prohibiting Customs and Border Protection officers from wearing 
protective masks. Since our borders provide an opportunity to 
slow the spread of H1N1, we must ensure the health of our 
first-line defense: the Border Patrol agents, Transportation 
Safety Administration officials, and other law enforcement and 
health care professionals.
    Disturbed by this contradictory message from Department of 
Homeland Security, I, along with 19 of my colleagues, sent a 
letter to Secretary Janet Napolitano demanding immediate 
revocation of the prohibition on masks. Mr. Chairman, I would 
ask unanimous consent to submit the letter sent to President 
Obama and Secretary Napolitano into the record.
    Mr. Lynch. Without objection, so ordered.
    [The prepared statement of Hon. Jason Chaffetz and the 
information referred to follow:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Chaffetz. Thank you.
    It is a delicate balance we must strike between protecting 
our frontline employees and not causing mass public fear and 
alarm. I hope our witnesses can provide some answers as we look 
into the effect that this epidemic is having on our Federal 
work force.
    Again, I thank you for your appreciation and look forward 
to hearing from you.
    Thank you, Mr. Chairman.
    Mr. Lynch. The Chair now recognizes the gentleman from 
Virginia, Mr. Connolly, for 5 minutes.
    Mr. Connolly. Thank you, Mr. Chairman. And I want to thank 
you for holding this important subcommittee hearing.
    We must seize this opportunity to explore steps that we can 
take to protect the Nation from this or future pandemics. 
Ninety years ago, an influenza epidemic swept the world, 
starting here in the United States, killing approximately 50 
million people. Today, enhanced mobility means that other 
pandemics could spread even more quickly and more broadly.
    Federal, State, and local governments have made significant 
investments in emergency preparedness since September 11th. In 
my district, Fairfax County opened a state-of-the-art emergency 
operation center. Regionally, the Metropolitan Washington 
Council of Governments, whose emergency preparedness council I 
chaired until being elected to this job, has coordinated cross-
jurisdictional emergency response planning with the goal of 
enhancing interoperability. The State of Virginia has pursued 
similar efforts.
    While those efforts have positioned us to respond to 
emergencies more effectively, we were focused more on response 
to a variety of attacks, perhaps, than events such as a 
pandemic. Since many levels of government have made substantial 
investments in both physical infrastructure and personnel for 
emergency preparedness, we must be able to identify efficient 
ways in which to ensure these existing facilities and networks 
can address both pandemics as well as terrorism.
    In addition to preparing our response to such pandemics, we 
need to take all possible steps to reduce the likelihood that 
they can occur. I am concerned, for example, that the 
widespread use of antibiotics in factory farms could be 
creating super-germs that would be resistant to medication we 
use in humans. While we do not know if there is any link 
between the use of antibiotics in factory farms and the swine 
flu, it is a timely reminder that our stock of antibiotics is a 
finite resource that we need to guard closely.
    I believe the Preservation of Antibiotics for Medical 
Treatment Act, introduced by our colleague, Representative 
Slaughter of New York, represents a thoughtful approach to 
protecting the potency of our antibiotics.
    Finally, Mr. Chairman, as the hearing brief made apparent, 
we need to take aggressive steps to protect our transit 
security employees from pandemics. It is unconscionable that 
TSA or Border Patrol or customs employees are not permitted to 
wear respiratory masks while interacting with thousands of 
travelers as a precaution to prevent the spread of diseases. I 
expect both agency witnesses and representatives of employee 
unions to tell this committee how we can rectify that problem 
immediately.
    I thank you again, Mr. Chairman, for holding these timely 
hearings.
    Mr. Lynch. Thank you.
    It is the custom of this committee to swear in witnesses 
for testimony. Would you please rise and raise your right 
hands?
    [Witnesses sworn.]
    Mr. Lynch. Let the record show that each of the witnesses 
has answered in the affirmative.
    Before I ask for testimony, we will do a brief introduction 
of the witnesses.
    Panel one: Mr. Thomas Galassi is Director of Technical 
Support and Emergency Management, Occupational Safety and 
Health Administration. Mr. Galassi is the Director of OSHA--
excuse me--the Director of Technical Support and Emergency 
Management, where he is responsible for the emergency 
preparedness response activities and workplace safety and 
health guidance. As a certified industrial hygienist, Mr. 
Galassi serves as deputy director of the Directorate of 
Enforcement Programs, where he had oversight of Federal agency 
safety and health from 1999 to 2008.
    Dr. David Weissman, Director of the Division of Respiratory 
Disease Studies of the National Institute for Occupational 
Safety and Health, and holds board certifications in internal 
medicine, allergy, and immunology and pulmonary diseases. He 
has authored and co-authored more than 60 publications, 
primarily in the area of lung immunology, tuberculosis, and 
occupational lung disease.
    Ms. Nancy Kichak was named Associate Director of the Human 
Resources Policy Division at the U.S. Office of Personnel 
Management in September 2005. In this position, she leads the 
design, development, and implementation of innovative, 
flexible, merit-based HR policies. In 2003, Ms. Kichak was 
awarded the Presidential Rank Award of Distinguished Executive 
for extraordinary accomplishments in the management of 
government programs.
    Ms. Elaine Duke was confirmed as the Department of Homeland 
Security Under Secretary for Management on June 27, 2008. Ms. 
Duke is responsible for the management and administration of 
the Department, which includes directing the human capital 
resources and personnel programs for DHS's 216,000 employees. 
Additionally, she oversees the Department's $47 billion budget, 
appropriations, expenditures of funds, accounting, and finance.
    Welcome.
    Mr. Galassi, you have 5 minutes. Just as a general 
guideline, that box in front of you will keep track of your 
time. You have 5 minutes to summarize your written statement 
that has already been entered into the record. When the light 
turns yellow, you should probably sum up. And when the light 
turns red, your time has expired.
    Mr. Galassi, welcome.

 STATEMENTS OF THOMAS GALASSI, DIRECTOR, TECHNICAL SUPPORT AND 
     EMERGENCY MANAGEMENT, OCCUPATIONAL SAFETY AND HEALTH 
     ADMINISTRATION; DAVID WEISSMAN, DIRECTOR, DIVISION OF 
      RESPIRATORY DISEASE STUDIES, NATIONAL INSTITUTE FOR 
OCCUPATIONAL SAFETY AND HEALTH, CENTERS FOR DISEASE CONTROL AND 
 PREVENTION; NANCY KICHAK, ASSOCIATE DIRECTOR, STRATEGIC HUMAN 
RESOURCES POLICY DIVISION, U.S. OFFICE OF PERSONNEL MANAGEMENT; 
     AND ELAINE DUKE, UNDER SECRETARY FOR MANAGEMENT, U.S. 
                DEPARTMENT OF HOMELAND SECURITY

                  STATEMENT OF THOMAS GALASSI

    Mr. Galassi. Chairman Lynch, Ranking Member Chaffetz, 
members of the committee, thank you for this opportunity to 
discuss the Occupational Safety and Health Administration's 
strategy for the protection of America's Federal workers from 
the new strain of Influenza A 2009-H1N1 virus.
    Before I begin my testimony, I want to express my gratitude 
for the many Federal workers who have responded so quickly to 
the current outbreak.
    It is clear that Federal agencies must be prepared for 
public health emergencies so that the Federal workplaces are 
not disrupted and the delivery of essential programs are not 
adversely affected. The full range of OSHA's training, 
education, technical assistance, enforcement, and public 
outreach programs will be used to help protect the Federal work 
force.
    Preparation is critical. OSHA has been engaged in efforts 
associated with the National Strategy for Pandemic Influenza, 
which directs all Federal departments and agencies to plan and 
prepare for a possible influenza pandemic. To support that 
effort, OSHA has published two guidance documents to help all 
employers, including Federal employers, better protect their 
employees and lessen the impact of a pandemic on society and 
the economy.
    Our guidance on preparing workplaces for an influenza 
pandemic includes an occupational risk pyramid for pandemic 
influenza to help employers select for their employees 
appropriate administrative work practices and engineering 
controls and personal protective equipment based on exposure 
risk associated with specific tasks.
    OSHA's current outreach efforts are aimed primarily at 
high-risk and very high-risk workers, those who have direct 
contact with infected individuals as part of their job 
responsibilities, such as health care workers and first 
responders.
    OSHA recognizes the importance of protecting health care 
workers, like those working at the Veterans Affairs, on whom 
this country will rely to identify, treat, and care for 
individuals with the flu. OSHA has issued pandemic influenza 
preparedness and response guidance for health care workers and 
employers which provides valuable information and tools about 
health care facility responsibilities during pandemic alert 
periods.
    OSHA is also developing guidance for employers on how to 
determine the need to stockpile respirators and face masks, 
along with fact sheets and quick cards written in English and 
in Spanish. The agency's Web site, www.osha.gov, contains 
comprehensive information dealing with a pandemic, as well as a 
link to the Federal Web site at www.panflu.gov.
    Federal agency heads play a central role in protecting 
their employees' safety and health. The Occupational Safety and 
Health Administration has broad requirements for agency heads 
to establish and maintain comprehensive occupational safety and 
health programs.
    As part of their programs, qualified safety health 
inspectors must inspect and identify hazards in the workplace 
and investigate accidents and employee complaints. Based on 
findings from investigations, agencies establish engineering 
and work practice controls and, where necessary, provide 
respiratory protection and personal protective equipment, as 
well as training on the use of respirators and how to get the 
respirator fit tested and to wear it properly, when to wear 
personal protective equipment, and how to properly put on and 
take off personal protective equipment.
    OSHA also performs inspections of Federal agency 
workplaces; enforces standards in a manner that is similar to 
the approach existing in the private sector, but Federal 
agencies are not penalized for noncompliance.
    As part of the 2009-H1N1 outbreak, OSHA has been fully 
engaged in Federal coordination on issues related to worker 
protections. OSHA is providing technical assistance to our 
Federal partners on general and agency-specific issues related 
to the health and safety of their staffs. I am confident that 
the numerous exercises we have carried out in emergency 
planning at both Federal and local levels since 2001 will pay 
off in our ability to work together in combatting this threat 
to the workplace.
    Mr. Chairman, I would characterize this situation for the 
Federal work force just as the President has described it for 
the Nation: ``cause for deep concern but not panic.'' I am very 
confident in the expertise of OSHA's medical, scientific, 
compliance assistance, and enforcement personnel. OSHA is 
prepared to address this threat and will protect our work 
force.
    I will keep you informed about OSHA's efforts to protect 
America's Federal employees from the current 2009-H1N1 virus 
and from pandemic flu exposure.
    [The prepared statement of Mr. Galassi follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. Lynch. Thank you.
    Dr. Weissman, you have 5 minutes.

                  STATEMENT OF DAVID WEISSMAN

    Dr. Weissman. Good afternoon, Chairman Lynch and Ranking 
Member Chaffetz and other distinguished members of the 
subcommittee. I am Dr. David Weissman, Director of the Division 
of Respiratory Disease Studies at the Centers for Disease 
Control and Prevention. I genuinely appreciate this opportunity 
to speak to you today and update you on the current efforts 
that CDC is taking to respond to the 2009-H1N1 influenza 
outbreak.
    Providing frequent and informative communications about the 
outbreak is an important CDC priority. NIOSH is proud to be 
part of an aggressive response by CDC to understand the 
outbreak and to implement effective control measures. It is 
important to note that our Nation's current preparedness is the 
direct result of investments and support by Congress for 
pandemic preparedness and the hard work of Federal, State, and 
local officials all across the country.
    The 2009-H1N1 influenza virus is contagious and spreads 
from human to human. It spreads in a similar way as seasonal 
influenza, in that flu viruses are thought to spread mainly 
from person to person through coughing or sneezing by people 
with influenza. Sometimes people can get infected by touching 
something with flu viruses on it and then touching their mouth 
or nose or eyes.
    Surveillance has been ramped up around the country to try 
to get a better understanding of the magnitude of this 
outbreak, and we are actively tracking the progression of this 
virus globally. It is important that we continue to be 
vigilant. We need to be prepared for a possible return of this 
virus to the United States in the fall.
    CDC has and continues to develop specific recommendations 
for what individuals, communities, clinicians, and other 
professionals can do. Everybody has a role to play in limiting 
this outbreak. Individuals can take actions that will prevent 
respiratory infections. Frequent handwashing is something that 
we emphasize as an effective way to reduce transmission. Adults 
with flu-like illness should stay at home and not go to work. 
Children with flu-like illness should also stay home and not go 
to school or child care. And if you are ill, you shouldn't get 
in an airplane or any public transport to travel. Taking 
personal responsibility for these things will help reduce the 
spread of this new virus as well as other respiratory 
illnesses.
    During public health emergencies like the current outbreak, 
protecting workers, including Federal workers, is a top 
priority. Like all of us, workers can contract influenza 
through general community exposures. And some workers, 
especially health care workers and emergency responders, are at 
higher risk for infection because their jobs, by definition, 
bring them into repeated close contact with individuals who are 
ill with this virus. These workers represent a particularly 
high priority for prevention.
    NIOSH is leading a CDC team effort to minimize the effects 
of the outbreak on workers by developing and disseminating 
guidance on precautions to prevent transmission of the illness 
in the workplace. Our guidance is informed by the hierarchy of 
controls used to reduce exposure, including engineering 
controls like isolation, ventilation, and physical barriers; 
administrative and work practice controls, like social 
distancing and telecommuting, hand hygiene and cough etiquette; 
and personal protective equipment, like gloves, glasses, gowns, 
and respiratory protective devices.
    As the outbreak evolves, specific guidance on the 
appropriate use of these controls is guided by our evolving 
understanding of the outbreak and the level of evidence 
supporting the effectiveness of the various controls.
    As part of the larger CDC response, we fielded questions 
and provided assistance to other Federal agencies responding to 
this influenza outbreak. For example, soon after the start of 
the outbreak, the Department of Homeland Security contacted us, 
and we helped them develop infection control measures to 
protect their most at-risk employees. We have continued to be 
in communication with DHS as the outbreak has evolved. We have 
also provided information to the U.S. Postal Service, the 
Department of Defense, and the U.S. General Services 
Administration to help them protect their employees from the 
virus.
    As we learn more, CDC will evaluate its guidance and update 
it as appropriate and will continue to work with other Federal 
agencies to provide the best and most current possible guidance 
for Federal workers.
    In closing, we are working hard to understand and control 
this outbreak and to keep the public and the Congress fully 
informed about the situation and our response. We are working 
in close collaboration with our Federal partners, including our 
sister HHS agencies and other Federal departments.
    Even if this outbreak proves to be less serious than we 
might have initially feared, we must anticipate the possibility 
of a subsequent or follow-on outbreak several months down the 
road. While we must remain vigilant, it is important to note 
that at no time in our Nation's history have we been more 
prepared to face this kind of challenge.
    We look forward to working closely with you to address this 
evolving situation as we face the challenges in the weeks and 
months ahead.
    Thanks again for the opportunity to testify before you, and 
I will be happy to answer any questions that you have.
    [The prepared statement of Dr. Weissman follows:]

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    Mr. Lynch. Thank you, Doctor.
    Ms. Kichak, welcome.

                   STATEMENT OF NANCY KICHAK

    Ms. Kichak. Thank you. Chairman Lynch, Ranking Member 
Chaffetz, and members of the subcommittee, thank you for 
including the Office of Personnel Management in your discussion 
of this important topic. I would like to share with you our 
efforts to ensure the Federal Government is prepared to meet 
the human resources management challenges posed by the recent 
H1N1 flu outbreak as well as any future pandemic health crisis.
    Our essential function in this regard is to provide 
critical human resources services to ensure the Federal 
Government has the civilian work force it needs to continue 
essential missions in an emergency. These include emergency 
staffing authorities, leave flexibility, evacuation payments, 
telework, and flexible working arrangements.
    We are continuously preparing for an influenza pandemic by 
developing and updating comprehensive human resources guidance 
and conducting briefings for Federal human resource 
specialists, as well as town hall meetings for employees at 
numerous Federal agencies.
    It is not possible to overstate my concern and that of OPM 
Director John Berry that we do everything necessary to protect 
the well-being of all Federal employees. However, we at OPM do 
not have the expertise to make judgments about the efficacy and 
appropriateness of certain medications and protective devices 
to frontline workers. Therefore, we have tried to keep Federal 
agencies apprised of the latest expert advice on these issues.
    For example, at the H1N1 Human Resources Readiness Forum we 
hosted last Friday, we made available representatives of the 
CDC, OSHA, and the Federal Occupation Health Service in the 
Department of Health and Human Services to answer questions 
about personal protective measures. The forum focused on 
pandemic influenza readiness for human resources directors, 
Federal employee union leaders, and other interested parties. 
OPM and other panelists answered the questions that weigh most 
heavily on the minds of managers and employees when they think 
about how a pandemic health crisis will affect them.
    One tool that can be extremely useful in coping with a 
pandemic health crisis is telework. It can help mitigate the 
spread of influenza by promoting social distancing while 
allowing the critical work of the Nation to continue. OPM 
Director John Berry recently announced a new initiative that we 
hope will help agencies ramp up their telework readiness. This 
initiative is driven not only by Director Berry's belief in the 
value of work-life programs generally but, more specifically, 
in the importance of telework as a tool for emergency planning.
    Under the director's telework initiative, we will convene 
an advisory group of telework program managers to formulate 
standards for agency telework policies, which we have asked 
agencies to submit to OPM for our review. Each agency has been 
asked to appoint a telework managing officer and to ensure 
their existing appeals process is transparent to employees.
    Finally, we will work with Congress to assure the provision 
of high-quality, broadly accessible telework training that will 
provide the baseline everyone needs to achieve success.
    With implementation of this initiative, we believe we will 
see not only an improvement in the consistency and quality of 
telework policies but also an increase in participation in 
telework.
    Employees who telework regularly and effectively under 
normal circumstances are well-positioned to continue to work 
from home during any type of emergency. Our pandemic planning 
provides that employees who are not currently teleworking 
certainly may be able to telework during an emergency. However, 
experienced teleworkers have the necessary equipment, computer 
connectivity, and practice working from a remote location that 
will enable them to continue critical work during an emergency.
    The current outbreak reminds us we must always be prepared 
to take care of our employees while continuing to meet the 
needs of the Nation. Federal agencies need to ensure their 
pandemic plans are up-to-date. They should make sure they have 
telework agreements with as many telework-eligible employees as 
possible and should test employees' eligibility to access 
agency networks at home, as well as their procedures for 
communicating with employees who are teleworking. OPM stands 
ready to provide guidance and support.
    Thank you for inviting me here today. I would be happy to 
respond to any questions.
    [The prepared statement of Ms. Kichak follows:]

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    Mr. Lynch. Thank you.
    Secretary Duke.

                    STATEMENT OF ELAINE DUKE

    Ms. Duke. Thank you. Good afternoon, Chairman Lynch, 
Ranking Member Chaffetz, and members of the committee. Thank 
you for the opportunity to come before you this afternoon and 
discuss how the Department of Homeland Security is preparing 
and protecting its employees in response to the 2009-H1N1 flu 
outbreak.
    I recognize that, as a department, we must work together to 
take proper safety precautions to reduce transmission of any 
disease while still performing our critical mission. This may 
mean that some employees need to wear personal protective 
equipment. Some employees may need to telecommute. Others may 
need to stay home if they have illness in their family or if 
their child's school is closed.
    I am committed to working with the component heads 
throughout the Department and across the Federal Government to 
provide our employees with the safest possible working 
environment. Our work force's safety and security is always a 
top priority.
    It is important to know that we are making all of our 
decisions based on the science and epidemiology as recommended 
by the Centers for Disease Control and Prevention, the 
workplace guidance from the Department of Health and Human 
Services, the OSHA office, the public health community, and the 
World Health Organization.
    Planning for a pandemic has been ongoing for several years. 
In fiscal year 2006, the Department was able to build the basis 
of its pandemic program. We began purchasing personal 
protective equipment for use by mission-essential employees. 
Currently, personal protection equipment is pre-positioned at 
53 DHS locations and field offices nationwide.
    The Department has also stockpiled two types of antivirals, 
the trademarks Tamiflu and Relenza, dedicated for DHS work 
force protection. DHS has on hand approximately 540,000 courses 
of antivirals targeted for its mission-essential work force. 
Guidance on the use of those antivirals has recently been 
published.
    Another element of planning the work was done in 2006 
through several planning documents, including a DHS Pandemic 
Influenza Contingency Plan; publishing ``Screening Protocols 
for Pandemic Influenza--Air, Land, and Maritime Environments''; 
the Draft Federal Interagency Pandemic Influenza Strategic 
Plan; and the National Strategy for Pandemic Influenza 
Implementation Plan.
    And we have exercised these plans. In October 2008, DHS 
conducted an interdepartmental pandemic influenza table-top 
exercise. The purpose of the workshop was to facilitate in-
depth discussions and highlight potential actions addressing 
departmental work force protection during the pandemic 
influenza event. All DHS components were represented, along 
with 13 other Federal departments and agencies, with a total of 
100 participants.
    Effective communication in any disaster is critical, and a 
severe pandemic where there would be nationwide consequences is 
no exception. DHS has made communication from the Secretary 
through the rest of leadership and through the components a top 
priority. Guidance was issued by headquarters officials and 
components, advising our employees to follow procedures and 
recommendations of the CDC, and we have consulted with 
Department of Labor's OSHA's office regarding work force 
protections.
    Training has also been crucial for preparing DHS work force 
in the event of a pandemic. The Office of Health Affairs within 
DHS developed pandemic awareness training, and this is on DVD 
and available to all our DHS components. Additionally, some 
components, such as ICE, Immigration and Customs Enforcement, 
have further developed training.
    The Department is taking several steps to ensure continued 
responsiveness to the components' request and to ensure the 
health and safety of our DHS work force. Moving forward, one of 
our goals is to provide uniform occupational health services 
across the Department in order to ensure operational components 
can deliver post-exposure prophylaxis and treatment of 
employees more effectively in the future.
    In addition, we hope to strengthen our internal medical 
oversight capacity, ensuring DHS fully utilizes the 
capabilities of our medical personnel in health affairs as well 
as our emergency services medical personnel. Finally, our 
Health Affairs Office has been developing a formal mechanism 
for providing medical advice to DHS components.
    In conclusion, DHS remains dedicated to protecting the 
health and safety of our work force in the event of a pandemic 
and during this recent H1N1 outbreak. I will continue to work 
closely with Secretary Napolitano and our component heads to 
respond to the needs of the DHS employees throughout this 
outbreak and in the future. As I said, our work force safety 
and security is a top priority.
    Thank you for holding this hearing, and I look forward to 
your questions.
    [The prepared statement of Ms. Duke follows:]

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    Mr. Lynch. Thank you.
    As is often the case in Congress, we are required to be in 
several hearings at one time. And the ranking member, Mr. 
Chaffetz, has asked to be excused so he can go into another 
hearing where he is also questioning some witnesses.
    Let me begin by saying thank you to all of you for your 
willingness to appear before the committee.
    Let me try to collapse the issue, because the scope of 
proper protection for all Federal employees may be a bit 
overbroad for this one hearing. I do have some major concerns 
with, principally, the 50,000 TSA workers who are responsible 
for protecting our country and our security in their own way, 
as well as I believe we have 40,000 Customs and Border Patrol 
officers.
    Just to give you a snapshot of what my concern focuses on, 
a full-time transportation security officer [TSO], works an 8-
hour shift. Individuals working the split shift have a 10-hour 
shift: 4 hours on, 2 hours off, 4 hours on.
    And depending on the size of the airport, a typical TSO 
would come into contact with anywhere between 500 and 2,000 
individuals in one shift. Data for selected larger airports, as 
well, for instance, at Miami International Airport, TSOs 
probably clear about 3,300 passengers per shift. At JFK, it is 
about 9,000 passengers that they come into contact with daily.
    And we are talking about wanding them, checking their bags, 
checking identification, basically hands-on, literally, so that 
they have physical contact with these individuals--9,000 per 
checkpoint per shift. That is in New York. And at Chicago 
O'Hare, it is between 9,000 and 12,000 per checkpoint per day. 
So you have a lot of hands-on contact by these folks.
    Customs and Border Patrol officers, those shifts are also 8 
hours. Although, I know from talking with them, they work a lot 
of overtime because of the demands of the job, which, can be a 
12- or 16-hour shift for those folks. And a typical--I am 
talking about the average--Customs and Border Patrol officer 
would see between 1,000 and 2,000 travelers per shift.
    The situation we just had--and I don't want to do too much 
looking back, because I think, as all of you have noted, we are 
worried about the next iteration of this flu, and that could be 
in the coming fall or at some time in the future. But there are 
lessons to be learned by looking back.
    And I have received hundreds of phone calls, as the 
chairman of this committee, affidavits, letters, and e-mails 
about the way our security personnel, Customs and Border Patrol 
and TSOs are being treated. And the plain fact of the matter is 
that there has been a concerted effort to deny these employees 
the right to have a mask--an N95 mask, to be more specific. But 
it boggles my mind, quite frankly, that DHS has not come up 
with a written guidance for addressing the issue of voluntarily 
wearing protective masks.
    Now, these folks, as I said, have high contact. You know, I 
got a lot of feedback from my folks on the Mexican border, and 
I have to have some empathy for their position. If you look at 
the numbers of H1N1 cases in the border States of Texas, 
Arizona, and California, the incidence of swine flu in those 
States is probably 400 percent of what the national average is. 
So there is an issue here, and it is empirical, what we are 
seeing. So we have an issue with the Mexican border and a 
heightened concern and a heightened exposure for those folks. 
And I have affidavits from a number of officers, from Laredo to 
Otay checkpoint, where they were told to take that mask off.
    And, you know, Madam Secretary, I just want to ask you, No. 
1, why don't we have a written guidance from DHS regarding the 
voluntary use of masks? Why are your managers and officials 
telling folks to take those masks off when they, on the ground, 
feel that is a necessary protection that they need? And I would 
like to hear your response to that.
    Ms. Duke. Mr. Chairman, thank you. And we do, at DHS, agree 
that from each one of these instances there are lessons 
learned. And we did issue the policy, as you know, about 
mandatory use, which comes into the high-risk category under 
the OSHA prescription----
    Mr. Lynch. Let me just interrupt you, because I don't want 
you just blowing through there. That is a guidance for 
mandatory use of masks. And what you say in your guidance is 
that when an officer specifically knows or suspects that an 
individual has swine flu or is ill, then they are supposed to 
put on the mask if they are within six feet of that person.
    The problem here, as you probably can guess, is that there 
is a 7-day incubation period, No. 1. No. 2, you have to get 
close enough to these folks to do your job anyway, so you are 
already inside 6 feet. And as smart and as capable as my 
Customs and Border Patrol and my TSOs are, none of them are 
doctors, and so they are going to have to make a determination 
that this person is ill. So that guidance on mandatory mask 
wearing is virtually useless to someone on the ground doing 
this work.
    And, again, I ask you about the guidance on when an officer 
or an agent may decide or may be allowed to use a mask, because 
I see nothing on that. So if you could address that point.
    Ms. Duke. Yes. We looked at the category of potentially 
medium-risk employees, which would indicate a voluntary use of 
mask. We followed the medical evidence given to us by CDC's 
review of the H1N1 virus. And, based on the medical evidence, 
we determined that there was not a need for policy at this 
time. It is something that we continue to look at each day as 
the statistics and the data for this round of H1N1 proceed and 
the potential next round that follows.
    Mr. Lynch. Wait a minute. You are telling people, if you 
know or suspect specifically an individual person has H1N1 or 
is ill, to wear the mask.
    Ms. Duke. Yes.
    Mr. Lynch. And you are saying that apart from that 
determination, that a person doesn't have the right to use the 
mask?
    Ms. Duke. There is no medical indication that it would be 
appropriate to wear the mask in the workplace based on the job 
requirements, the way H1N1 has progressed through the 
population this first phase.
    Mr. Lynch. You have to do this before the fact though. You 
are saying now that it has progressed, you don't warrant it. It 
just doesn't hold water, that whole argument. You know, you are 
telling people, wash your hands, cover your mouth when you 
cough, stay home when you are sick. But these folks are on the 
frontlines. You don't think this is a high-risk situation when 
you have these folks screening hundreds, if not thousands, of 
travelers coming in from, in this case, Mexico, where we had a 
very high number of cases already reported?
    Ms. Duke. I think it is critical--and we heard what our 
employees said, and we continue to evaluate it. To really 
warrant wearing masks in the workplace, there has to be a 
high--a reasonable probability that the employees are going to 
encounter the sicknesses in their line of duty. And based on 
the medical evidence, I know I have said that before, but I 
keep having to go back to it, we consulted with experts, and it 
did not seem appropriate.
    Wearing masks is not a neutral physical condition. There 
are risks with it, with certain populations, in wearing the 
respirators. Additionally, there are other personal protection 
and equipment, such as the frequent washing of hands, the 
social distancing, where you can.
    Mr. Lynch. These workers were not even allowed to use 
sanitizers. Apart from the masks, they also report that they 
weren't allowed a chance to go wash their hands or use 
sanitizers. They were kept on the line. They weren't allowed to 
have breaks. So here you have somebody who is checking maybe 
thousands of people. I would hate to be the thousandth person 
in line after this person has already wandered and checked a 
thousand people coming through from Mexico, and this whole 
volume of people is continually coming through, and this person 
is not allowed to disinfect from one shift to another. And that 
troubles me greatly.
    Ms. Duke. My understanding is that TSA did change protocols 
on the cleansing of bins.
    But I will check into that, Mr. Chairman.
    Mr. Lynch. I am going to let Mr. Connolly say a few things. 
We are going to come back to this again.
    Look, I am not satisfied with your answer. I am not as 
satisfied with the policy that DHS has adopted for their 
employees. I think the decision should be made on the ground, 
and your guidances have been totally nonresponsive to this 
situation of voluntary use of masks where these individuals 
feel they need to. And I am receiving nothing here. You are 
going to continue to evaluate?
    Ms. Duke. Absolutely.
    Mr. Lynch. That is not good enough. That is not good 
enough. We will legislate. If that is what I have to do to get 
the permission for my Federal workers to wear masks on the 
Mexican border in the middle of an epidemic, a pandemic, or the 
threat of one; if I have to legislate that they have the right 
to wear masks to protect themselves and their families and 
their communities, that is what I will do. But I shouldn't have 
to do that. I shouldn't have to blow up the bureaucracy just to 
get something done.
    This is a simple issue. This is a really simple issue. 
Protect these workers that are protecting us. They are 
screening thousands of people coming in. If they are infected, 
what about the exposure of those other passengers? What about 
the exposure of their families? What about the exposure to 
their kids? What about the exposure to the towns in which they 
live?
    And you look at the numbers in Texas, Arizona, and 
California, and like I say, they are four times the national 
average. It is not an immigration thing; it is just a 
commonsense thing, that we are trying to protect these workers.
    And I find your response and the position of DHS 
unacceptable. It just doesn't work. Your excuses are lame. And 
you are saying that you are following the medical evidence. 
This is common sense.
    This is common sense. In my prior job I used to have to 
wear a respirator as a welder. It is not a comfortable thing. 
It is not something that someone is going to leap to do. If 
they feel it is necessary, they will put the mask on. It is 
hot. It is stuffy. It is not something that people enjoy doing, 
so there is almost an inclination that people won't wear them. 
But when these workers feel that they are at risk, and they 
need that protection, well, we ought to provide that. We are 
supposed to be an example, the power of example, the Federal 
Government as an employer.
    These are very brave people. These are good people. These 
are hard workers. And we should be taking care of them the way 
they are taking care of the American people, and I don't think 
that is being done right now. I really don't. And I think this 
bureaucracy, this back and forth about agencies, they said 
this, forget that stuff. Let's just get it done. Let's get 
these masks to the employees. Let them use it when they deem it 
necessary. Let them protect themselves, and let's move on.
    The ranking member is back.
    So, Mr. Connolly, I am going to defer.
    Mr. Chaffetz, you are recognized for 5 minutes or whatever 
time you may consume. I overwent my 5 minutes while you were 
gone.
    Mr. Chaffetz. I will be brief. And my apologies for missing 
the first portion. I had a similar hearing next door. I 
appreciate your understanding.
    My questions are for you, Ms. Duke, because I concur with 
the chairman here on this. This is not acceptable. You said in 
your testimony that safety is your top priority. Do you believe 
that the actions of the Department of Homeland Security are 
consistent with that testimony that you gave?
    Ms. Duke. I do believe that as we took our actions, we had 
the safety of our employers in mine.
    Mr. Chaffetz. What is the policy? What should have happened 
versus what happened? I mean, why weren't they allowed to wear 
masks if they so choose? I mean, we were in a medical 
emergency. Right? Were we not?
    Ms. Duke. Yes, we were.
    Mr. Chaffetz. What is the written standard? What is the 
policy? What should have happened per the guidebook? Is the 
guidebook wrong?
    Ms. Duke. By the guidebook, I will take that as meaning the 
OSHA policy, we are supposed to analyze the risk of employees. 
And based on the categorization of the risk to the employees, 
based on the threat, their work situation, either prescribed 
mandatory usage, voluntary usage, or----
    Mr. Chaffetz. So are you saying that at that stage, it had 
not kicked into the voluntary, voluntary compliance or 
voluntary usage of the mask would not have kicked in at that 
stage?
    Ms. Duke. We discussed voluntary usage of the masks. The 
H1N1----
    Mr. Chaffetz. Who made the decision not to allow that to 
happen? And what was the underlying reason that they weren't 
allowed to?
    Ms. Duke. The underlying reason was, when we consulted with 
the medical experts within the Federal Government, including 
CDC, that it was not warranted nor necessary.
    Mr. Chaffetz. So it wasn't warranted or necessary. And who 
made that ultimate determination?
    Ms. Duke. I would have to say the Secretary of Homeland 
Security.
    Mr. Chaffetz. Now, you said this is based on science. But 
everything I have read and heard said this is based on 
proximity; and that there needs to be a certain amount of 
distance; and that by ultimately touching or coming in contact 
and all of that. I just find it absolutely unacceptable, that 
our Federal workers were not allowed, if they so choose, to don 
things that would protect them from the very--the world is 
looking at this as a pandemic.
    We look at the possibility of this spreading, moving 
northbound. I just am dumbfounded that the Department of 
Homeland Security would not take and put, as you say, safety as 
its top priority. I find nothing in the evidence to suggest 
that this was the right move. The written policies need 
adjustment. I would hope that you would return to this 
committee and that the Homeland Security would return to this 
committee and demonstrate that, truly, safety is the top 
priority. Because I see nothing that would exemplify that.
    I think this is also something we should note in terms of 
culture. I spent quite a bit of my career in Asia. It is 
commonplace. If you have a cold or you are somewhat sick, you 
wear a mask, and nobody thinks a second of it; maybe a 
Westerner who has been there for the first time. I remember the 
first time I saw it. But people become very accustomed to it.
    I find a great discrepancy between your insistence that 
safety is the top priority, and that what we went through and 
are going through at the border and with our TSA employees and 
a host of other Federal workers to go through this. I find it 
totally unacceptable. I concur with the chairman here.
    I just want to ask one other thing of, pardon me for how 
you pronounce your name, Ms. Kichak. What sort of drills or 
what sort of training or what sort of preparation is there that 
actually happens for these types of things, and specifically as 
it relates to the whole telecommuting? Because we could have 
very quickly had to get into a scenario as it relates to 
telecommuting, and I wonder how well we would be prepared in 
order to execute on that.
    Ms. Kichak. Well, each agency has been encouraged, and as I 
have said, we have done----
    Mr. Chaffetz. If you could use the microphone.
    Ms. Kichak. Each agency is encouraged to practice, and we 
have done town halls suggesting this. I know OPM has run 
several drills where we have sent a good segment of our work 
force home. And those are not people who normally telework, but 
we have sent them home to try to work for 3 or 4 days. We want 
to see what it is like for more than just an afternoon to try 
to get your work done, so that people get a sense of what it is 
like. And so that is the kind of drilling we have done.
    Mr. Chaffetz. How prepared are we for that? If zero is 
nothing and 100 is perfect, where are we on that scale?
    Ms. Kichak. As far as practicing telework is concerned, 
based on the low numbers of teleworkers today, I would put us 
on a four.
    Mr. Chaffetz. Out of 100?
    Ms. Kichak. No, Out of 10. I am sorry.
    Mr. Chaffetz. Maybe 40?
    Ms. Kichak. Yes. I think one thing that we are learning is 
that you have to practice and then practice and then practice, 
because your connectivity changes. You do it and you do it, and 
6 months later, it is out of date, and you have to do it again.
    Mr. Connolly. Would my colleague yield?
    Mr. Chaffetz. Sure.
    Mr. Connolly. Ms. Kichak, you gave it a 4 out of 10. What 
percentage of Federal work force currently teleworks?
    Ms. Kichak. Six percent on a routine basis.
    Mr. Connolly. So 40 percent is really grading on a curve.
    Mr. Lynch. At this point, the Chair would like to recognize 
the gentleman from Virginia, Mr. Connolly, for 5 minutes.
    Mr. Connolly. Thank you.
    Ms. Duke, if I could go back to you just for a minute, 
because I want to followup on the comments of the chairman and 
the ranking member, and I associate myself with them. I guess 
the problem I have, and I suspect my colleagues do as well, is 
you keep on harping back to, there is no medical evidence that 
would justify the use, the voluntary use or mandatory use, of 
masks, which, that statement would imply there is some medical 
threshold by which you measure that would kick in the use of 
masks. And I guess I would like to know what that medical 
threshold is if there is such a medical threshold in DHS's 
mind.
    And I guess, from our point of view, and the chairman used 
the phrase common sense; you have to differentiate, it seems to 
me, the nature of the job. If I am a transit operator behind a 
glass panel, and I never have human contact during the course 
of my 8-hour workday, that is one thing.
    On the other hand, as the chairman indicated, if you are a 
TSA worker, you are patting people down, increasingly you are 
engaged in near strip searches. You are exposed to all kinds of 
things. You are dealing with hundreds of people. And let's say 
you are in El Paso and you are dealing with a lot of Mexican 
travelers, and the epicenter of this epidemic was in Mexico.
    Why wouldn't we, just as a matter of prudent and reasonable 
prophylaxis, say to those workers, if you feel more comfortable 
wearing a mask, guidance is have at it? You don't want to, you 
don't have to; we are not in a mandatory mode. But if that 
makes you feel safer and gives you a comfort level of going to 
work and a comfort level extended to your family, why in the 
world wouldn't we encourage that or allow that?
    Ms. Duke. Mr. Connolly, I guess a couple parts to your 
question.
    First of all, on the mandatory use, the standard for that 
is that an employee is in the high risk, and that is a known or 
a probable case. So if, for instance, a Border Patrol agent 
believes that a traveler has, is exhibiting symptoms, and they 
decide they are going to refer the case, call in CDC, then that 
would fit in as an example of fitting into the high-risk 
category.
    DHS has not issued, just to clarify maybe my previous 
answers, we have not issued a policy to prohibit the use of 
masks at the Department level. What we have relied on during 
this first phase of the epidemic is individual judgments based 
on the specific scenario. And so there was not a prohibition at 
the Department level of wearing of masks.
    Mr. Connolly. If I may interrupt you there, that is 
contradictory to the evidence presented to this committee. We 
are hearing from the work force quite the opposite; that, as a 
matter of fact, there is a general broad prohibition against 
voluntary use of the masks, that they are not permitted to do 
it, specifically at DHS.
    Ms. Duke. We have not--I know emphatically, and I will 
check throughout the components, that we have not issued any 
guidance that prohibits the use of masks.
    Mr. Connolly. Well, that is good to know, Mr. Chairman. And 
I am sure it will come as a relief to the work force.
    Mr. Lynch. Let me followup on Mr. Connolly's question. You 
have given permission to Customs and Border Patrol agents--
agents, not officers--to wear the masks. They all wear the 
masks, voluntarily. I am sorry, Border Patrol. So those agents, 
those Border Patrol agents, under the instruction of your 
managers, your officers, they are all allowed to use the masks 
voluntarily, and they do. So, you see what I am saying?
    Your own policy for them is, wear the masks. That is 
completely voluntary for them. And they don't have any, let's 
say, medical or clinical distinction from the exposure being 
experienced by the other officers as well. And so you have some 
great inconsistency here.
    I also want to just share, I have a bunch of these 
affidavits that have come in from different officers all over 
the country. But this is one case, this is Kenneth Eagan. He 
actually took this serious enough to file an affidavit, a sworn 
statement under the penalties of--pains and penalty of perjury.
    He says, I am employed by the U.S. Bureau of Customs and 
Border Protection. I am currently assigned to the Las Vegas 
port of entry, an airport. On Monday--and he says, my assigned 
duties include processing inbound passengers, and I regularly 
come into contact with members of the traveling public arriving 
from Mexico, and those contacts routinely require contact 
within 6 feet of those individuals.
    He goes on to say that on Monday, April 27th--this is right 
around the time that this first became apparent, I think it was 
the 22nd. So this is 5 days into the crisis--I was scheduled to 
work primary inspection booth eight from 9:30 to 5:30. After I 
set up in the booth, I began processing passengers. I put on my 
protective gloves and the N-95 mask.
    And this is what an N-95 mask--not anywhere as fearsome as 
the mask I used to wear as a welder. This is like a little dust 
mask. I don't know how that would alarm the public.
    Anyway, he said, I donned my gloves and my N-95 mask. The 
first two flights of the day were from Mexico, and one was from 
Mexico City, which is the epicenter of the swine flu outbreak. 
During the second flight, Mexicana Flight 986, arrived from 
Mexico City. Chief Gonzalez, his superior, came to his assigned 
booth and blocked the aisle so no new passengers could 
approach. The other supervisor, Mr. Campbell, blocked the booth 
door behind him.
    I was processing a passenger at the time, and Chief 
Gonzalez interrupted the inspection, ordered me to remove the 
mask. He said, take the mask off now; you are not authorized to 
wear a mask.
    He goes on to say, I finished the processing of the 
passenger and removed the nitrile gloves, used hand sanitizer 
to clean his hands, and then removed the N-95 mask.
    He said, after I removed the mask, Chief Gonzalez told me 
not to wear a mask while processing passengers. He told me that 
the only time I could wear a mask was if the person standing in 
front of me was showing obvious signs of the flu, as had been 
explained in a muster briefing.
    He said, I told Chief Gonzalez that if I waited for someone 
to hack or cough on me, it would be too late for the mask to 
provide protection against exposure.
    I've got a lot of these. This is from Lilia Pineda, who is 
also a U.S. Border and Customs Patrol Protection Department of 
Homeland Security, San Diego. Her assignments again were 
processing inbound passengers, vehicles, and pedestrians. So 
this is a lands checkpoint.
    Mr. Bilbray. The largest lands checkpoint in the world.
    Mr. Lynch. There you go.
    On or about April 28, 2009, Lilia Pineda was working at 
Otay Mesa, primary lane four, and decided to wear an N-95 
respirator mask. I had made this decision for several reasons. 
I had been fitted for an N-95 respiratory mask. I was 
encountering--I had also been trained to fit other Customs and 
Border Patrol officers for that mask. I was encountering 
individuals who were coming in from Mexico City and other 
cities in Central Mexico where the swine flu was prevalent. I 
also had a cold at the time, and I thought I was especially 
vulnerable to getting another illness. I was also concerned 
about exposing other members of my family.
    At approximately 9:30, while wearing an N-95 while working, 
I was approached by Chief Kait who instructed me to remove my 
mask. I explained to him that I had taken the training for the 
respirator fit test trainer, and that I felt it was a health 
and safety issue for me to wear the mask that I had been fitted 
for. Despite my objection, the chief refused to allow me to 
wear the mask. He repeatedly asked me angrily, with his hands 
at his hips, saying, are you going to comply, or do you want to 
go home sick?
    There are a lot of these affidavits that clearly indicate 
from various parts of the country that there is a concerted 
effort on the part of DHS not to let these employees wear the 
masks. And while you say that you don't have any policy that 
says you can't wear masks, your people on the ground, your 
managers, the people who work for you are telling these workers 
they can't use the mask. So, what do you say to that? And it is 
all around the country, so it is not an isolated case.
    Ms. Duke. What I would say to that is that, during the 
first round of H1N1, we did, consistent with OSHA--and I am 
going to explain--allowed decisions to be made by individual 
supervisors based on their assessment of risk. What we heard 
back from the employees is that created at least a perception 
of inconsistency with DHS.
    Mr. Chairman, you mentioned some people were wearing masks. 
So the inconsistency.
    So what we are looking at right now is, should that 
practice continue? Should it be individual site-specific first-
line supervisor discretion? Or, especially if there is another 
round of H1N1 in the fall, should we look at risk from the 
Department and ensure consistency in our work force?
    Mr. Lynch. That is too late, as far as I am concerned.
    I am going to yield 5 minutes to Mr. Bilbray.
    Mr. Connolly. Mr. Chairman, I hadn't quite finished my----
    Mr. Lynch. I am sorry.
    Mr. Connolly. And I know we have to vote. If Mr. Bilbray 
would indulge me on just one issue.
    Mr. Lynch. Sure. Go ahead.
    Mr. Connolly. And I just wanted to say, Mr. Chairman, and I 
certainly associate myself with your remarks.
    I was very heartened by Ms. Kichak's comments on telework, 
and I was very impressed with Mr. Berry's--we had a press 
conference up here, and he was kind enough to provide several 
of us who have introduced legislation, H.R. 1722, to promote 
telework in the Federal Government. And, really, it is nice to 
have a partnership on this subject.
    But I think telework, Mr. Chairman, is essential to any 
kind of continuity-of-operations plan in the Federal 
Government. In fact, it is essential for the private sector as 
well.
    And, Mr. Chairman, I would ask that at some point this 
subcommittee may want to consider hearings and a markup of H.R. 
1722 so that we can help codify progress within the Federal 
ranks to ensure that telework is formally an option for our 
Federal work force.
    I thank the Chair.
    Mr. Lynch. I thank the gentleman.
    The Chair now recognizes Mr. Bilbray from California for 5 
minutes.
    Mr. Bilbray. Thank you, Mr. Chairman.
    Ms. Duke, I was in local government long enough to know 
when I hear somebody wordsmithing. It is not an official policy 
of the Department, but it was an open opportunity for local 
supervisors to deny the employee the free choice to wear this 
or not. Is that a fair explanation of your term, ``there is no 
policy, Department policy, against it?''
    Ms. Duke. I guess I am not sure by free choice. I mean, the 
employer has to manage the workplace and determine if it is 
appropriate. So, in this case, we did exercise that free 
choice--excuse me, we did exercise discretion in managing the 
workplace, and some employees were not allowed to wear their 
masks in the workplace we learned over the last 2 weeks, yes.
    Mr. Bilbray. My question to you, are you aware of any more 
exposure that somebody at the land entries would have as 
opposed to somebody at the airport entries?
    Ms. Duke. Well, the evidence indicates that we have very 
few instances of DHS employees in general having confirmed 
cases of the H1N1.
    Mr. Bilbray. For the record, Mr. Chairman, I think that it 
is essential that those of us along the Frontera point out, 
that, unlike the airports, people do not fly into the United 
States specifically to get free medical care, but one of the 
realities of the Federal mandate of free medical care in this 
country is that people that are outside the country that want 
to receive free medical care along the Frontera just have to 
get in their car and drive across the border and present 
themselves with their illness.
    And one of the issues that has not been discussed is the 
increased exposure of our men and women at the land port of 
entries, because of the attractive nuisance of or the situation 
of actually encouraging people to come into the United States 
who are showing symptoms because they can get treated for free 
in the United States. And so the men and women along our port 
of entries are exposed that much more than not only the general 
public but also even more than their colleagues that would be 
handling flights coming in to an airport. And I want to make 
that clear so that we understand what kind of situations are 
along the border.
    Now, the issue of the primary and secondary, were the 
secondary people allowed to wear masks at a time that the 
primary was denied?
    Ms. Duke. I know of no such policy.
    Mr. Bilbray. I was informed there was. Anybody got any? You 
know, the discussion I had, a 6-foot barrier reminds me of some 
kind of dancing rule in our cabaret licenses in government. My 
question to you is, are you aware of the procedure that they 
would go? Anybody want to talk about that? The 6-foot to me 
sounds absolutely absurd, as somebody who grew up crossing that 
border. The primary inspector is at a window. He specifically 
makes contact with the driver, then proceeds to make contact 
with every member in that vehicle, which usually means placing 
his or her head into the vehicle to be able to hold that 
conversation. To even discuss the 6-foot for primary is 
absolutely absurd. We are talking about face-to-face 
discussions going on, and then for a 6-foot issue to come up, 
do you have any explanation of how anyone in primary could 
operate their duty and still maintain a 6-foot barrier between 
them and the individuals making contact?
    Ms. Duke. No. I believe most primary screening would be 
within 6 feet at a land port of entry.
    Mr. Bilbray. What is the Department doing today--and I 
apologize for being here late, but I had another hearing and 
have been bouncing back and forth. What have we done today to 
make it clear, or has the policy been changed to allow the men 
and women that are on the frontline to make this determination 
themselves? Or is it still a-supervisor-by-supervisor's call 
like it was in the last month?
    Ms. Duke. The current state of H1N1, even CDC has changed 
their guidance on May 8th, does not warrant the use of 
respirators, the N-95, even in the conditions that we are 
discussing here. So the medium risk, which is within the 
general public recurring for long periods of time, does not 
warrant the use of masks, according to CDC guidance.
    Mr. Bilbray. So today, if somebody in San Ysidro wanted to 
put on a mask in primary, they can't do it.
    Ms. Duke. The supervisor would assess the specifics of the 
situation. Some employees do wear masks and are permitted by 
the supervisor.
    Mr. Bilbray. You know, let me just be very frank about 
this. I have seen the public relations game played along the 
border for 30 years. This certainly looks to me more like a PR 
concern than a public health concern. And I operated a public 
health department for 3 million people for 10 years, and there 
is no way in the world I could have asked my county or city 
employees not to be given the ability to make that call. I 
mean, there is that issue of free choice when it comes to your 
health. This is one that I just think goes way over.
    And madam, I am sorry, I know you are having to carry quite 
a burden walking in this room. But, frankly, I think this is an 
indictment on the system that worries about perceptions more 
than allowing people to make that choice themselves to protect 
their health, and I just think that it is going to be one that 
is not going to be let up until it is corrected.
    Thank you very much, Mr. Chairman.
    Mr. Lynch. Thank you.
    And I am not going to beat this to death, but in the one 
breath, you say CDC says it is not warranted, that masks aren't 
warranted. But in the next breath, you've got all your Border 
Patrol agents all wearing them voluntarily. So you are not 
relying on CDC, because all those folks can wear the masks. But 
you have 50,000 others that can't wear the masks, and you have 
whatever medical evidence you have, but you have made two 
different decisions where there really isn't a distinction 
between the jobs being done by those officers.
    So you are not relying on CDC. I know you are trying to 
shift the responsibility to them, but you have already taken it 
upon yourselves to make a dual policy between border agents and 
TSOs and Customs folks and ICE, those employees as well, who 
are not being allowed to wear the masks. That is an internal 
inconsistency that you have within your own Department.
    So let me ask--I am going to have to break for votes here 
shortly. But, Dr. Weissman, while I recognize that NIOSH is not 
responsible for setting standards, I understand that NIOSH has 
taken a lead role in pandemic flu research and personal 
protective gear. Do you feel, and I am not sure if you can 
answer this, but do you feel that an airborne transmissible 
disease standard should be considered by OSHA? And is this one 
of those areas where NIOSH thinks it might be warranted?
    Dr. Weissman. I think that is a policy issue that, 
obviously, I wouldn't make on my own. But we have guidance and 
the question of whether it is done in a regulatory way or it is 
done in a nonregulatory way, as long as it happens, as long as 
people do the right thing. And in the case of flu, as long as 
people do not only respiratory protection but do the whole 
range of protections is what is really important.
    So let's not lose track of the fact that people need to do 
the range of other things that we have talked about. People 
have to wash their hands. People have to do the distancing and 
the etiquette and the contact and all those kinds of things, 
too. And whatever happens, whatever comes down the road, should 
take into account the full range of the hierarchy of controls.
    So I guess that would be my response, I wouldn't focus just 
on respiratory.
    Mr. Lynch. I understand that. I certainly value your 
opinion. On that point, though, in a lot of these cases, these 
transportation security officers were not allowed to wash their 
hands, not allowed to use sanitizer in the process of screening 
these passengers. Is there anything you can think of that would 
warrant refusing them permission to do that?
    Dr. Weissman. Well, you know, we didn't talk specifically 
with DHS about this. The one anecdote that I can give you where 
this issue did come up was with the Postal Service, where the 
Postal Service has a history since the anthrax attacks of 2001, 
of allowing its employees to use N-95 filtering face-piece 
respirators on a voluntary basis. And when the 2009-H1N1 
outbreak occurred, they contacted us with the question of, 
would it be all right if we allowed them voluntary use of N-95s 
or surgical face masks? And our response back to them was that 
it was really important, if that were done, to do it within the 
context of an educational program to make sure that just, if 
people used those devices, that they should also follow the 
other protections, you know, the other things that we have 
talked about, again, hand washing, distancing to the extent 
possible, you know, barriers, and also understanding the 
strengths and limitations of the devices. So that is the one 
anecdote I can give you of where that came up.
    Mr. Lynch. I am going to have to run over and vote, so I 
should be back in about 25 minutes. Thank you.
    [Recess.]
    Mr. Lynch. Because of the continuous voting schedule, this 
testimony and this hearing have been delayed to an unreasonable 
extent, I believe. So to try to accommodate all the witnesses, 
and I know some members on our first panel had other 
engagements that they let us know of in advance, we decided 
that we would continue any questions with that panel in writing 
and any responses would be returned in writing in order to 
expedite the hearing. And we may do that with the next two 
panels as well if there is additional questioning and responses 
warranted.
    But let me first, as is the custom here, we usually swear 
witnesses. So I ask all witnesses to rise and raise your right 
hands.
    [Witnesses sworn.]
    Mr. Lynch. Let the record reflect that both witnesses have 
answered in the affirmative. Before proceeding with testimony, 
I would like to offer a brief introduction of the witnesses on 
panel two.
    T.J. Bonner is the president of the National Border Patrol 
Council, a professional labor union representing more than 
17,000 Border Patrol agents, and whose parent organization is 
the American Federation of Government Employees. He has been a 
Border Patrol agent in the San Diego area since 1978, where he 
is a strong advocate for secure borders and fair treatment of 
the dedicated men and women who patrol them.
    Ms. Colleen Kelley is the national president of the 
National Treasury Employees Union [NTEU], which is the Nation's 
independent sector union, representing employees in 31 separate 
government agencies. A former IRS revenue agent, Ms. Kelley was 
first elected to the union's top post in August 1999 after a 4-
year term as national executive vice president.
    Welcome to both of you. And I appreciate your forbearance 
and your patience.
    Mr. Bonner, you now have 5 minutes for an opening 
statement. Thank you.

 STATEMENTS OF T.J. BONNER, PRESIDENT, NATIONAL BORDER PATROL 
COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; 
   AND COLLEEN KELLEY, NATIONAL PRESIDENT, NATIONAL TREASURY 
                        EMPLOYEES UNION

                    STATEMENT OF T.J. BONNER

    Mr. Bonner. Thank you, Chairman Lynch.
    Protecting our Federal work force is pretty much a no-
brainer. It is in everyone's interest. Not just as a favor to 
the employees, but any sensible manager needs that work force 
there. Despite the advances we have made in automation, a few 
baby steps in telework, many of the tasks performed by Federal 
employees have to be done with face-to-face contact with the 
public.
    Law enforcement, first responders, health care, primarily, 
the American Federation of American Government Employees 
represents many of these employees in the Department of 
Homeland Security, Veterans Affairs, Social Security, Bureau of 
Prisons, and other Federal agencies that the American public 
relies upon, and it makes absolutely no sense to have those 
employees unnecessarily taken out of the equation by having 
their health jeopardized by predictable events.
    And let me be clear, we are not just talking about the 
recent swine flu outbreak. We had the SARS outbreak in April 
2003. And yet, here we are more than 6 years later, and it 
appears that the lessons have not been learned.
    Our agents at the border, be they Border Patrol agents, CBP 
officers, and the TSOs, come in contact with people from 
countries all over the world, some of whom, and I am not saying 
by any means the majority, but some of whom are carrying 
communicable diseases. These officers and agents should be 
allowed to take reasonable precautions in order to safeguard 
their health.
    While it was refreshing to hear the Undersecretary for 
Management for DHS be upfront about the Department's policies, 
those policies are, quite frankly, appalling. An admission that 
supervisors with no medical experience whatsoever are given 
full rein to decide whether employees can protect themselves?
    There are two things that our government should be doing 
for employees. It should be providing them with the protective 
equipment that they need and facilitating their use of that 
equipment.
    Border Patrol agents are provided with soft body armor to 
protect themselves against armed assailants. Listening to the 
Undersecretary for Management and the inane policy that she was 
articulating brought to mind a policy, what a policy would look 
like for Border Patrol agents if they were told you can don 
your body armor when the bullets start flying. When you are 
within range of someone and they sneeze on you, it is too late. 
At that point, you don't don the mask. You have already been 
infected. These employees should be allowed to wear the mask 
when they feel the need for that mask.
    I am, I suppose, equally mystified and appalled as you, 
sir, when I hear these alibis for why they are not doing the 
right thing for their employees. This is something that is a 
no-brainer. You can go to--and one of the excuses that I have 
heard is, well, our employees haven't been trained properly. 
They haven't filled out the medical questionnaire, and they 
haven't been fit-tested. You can go down to the corner hardware 
store and buy an N-95 respirator. Millions of Americans do it 
every year. They don't have to fill out a medical 
questionnaire. They don't get fit testing. It is kind of common 
sense.
    It reminds me very much of the little warnings that they 
put on firearms: Warning, this could be dangerous. Well, yeah. 
If you experience lightheadedness after you put this on even 
though you haven't been trained, then common sense tells you, 
maybe I should take this off.
    We give these folks at the border arrest authority. We give 
them guns to defend themselves and empower them to use deadly 
force if necessary. And yet, we can't trust them to make 
commonsense judgments about their own health?
    Before I close my statement, I would like to introduce into 
the record some of the examples at the airports with the TSOs 
of how different this policy has been administered. I would 
say----
    Mr. Lynch. We will accept that without objection. You can 
submit that for the record.
    [The information referred to follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. Bonner. Thank you, sir.
    As a Border Patrol agent, I can happily report that, up 
until this point, they have not prohibited our agents from 
wearing respirators and other personal protective equipment, 
but I am very well aware of other instances within Customs and 
Border Protection officers who are part of the same bureau 
within the Department of Homeland Security, and yet, in those 
situations, where in fact they encounter more people than we do 
every day coming in from Mexico.
    And I would just say as an aside that when someone is 
transiting from Mexico where probably during the height of the 
outbreak, 25, 33 percent of the people were wearing some type 
of facial protection, they must have thought they hit the 
Twilight Zone when they hit the US-Mexico border and didn't see 
any of the people inspecting them wearing any type of 
equipment. This is unacceptable, and it needs to change. And I 
appreciate your hearing to make in-roads in that direction. 
Thank you very much.
    [The prepared statement of Mr. Bonner follows:]

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    Mr. Lynch. Thank you, Mr. Bonner.
    President Kelley for 5 minutes.

                  STATEMENT OF COLLEEN KELLEY

    Ms. Kelley. Thank you very much, Chairman Lynch.
    Thank you for holding this hearing today and for inviting 
me to testify on behalf of the thousands of employees 
represented by NTEU who work every day to protect our country 
from threats and who have continued to do their critical work 
diligently during the current swine flu outbreak.
    The NTEU represented employees most affected by the current 
spread of the H1N1 influenza work for the Department of 
Homeland Security, as we have been discussing. Our Customs and 
Border Protection officers and agriculture specialists work at 
the land, at the sea, and at the air ports of entry across the 
country, and our transportation security officers work at 
airports.
    You have clearly articulated the work that they do and the 
number of travelers that they interact with every day doing 
their jobs, and why the 6-foot rule that we have heard about 
does not work.
    Many of these employees work on the U.S.-Mexico land 
border. Many also process international flights from Mexico. 
Once the origin and the breadth of the swine flu became clear, 
these employees in particular were concerned about protecting 
their health and that of their families. That is certainly 
reasonable.
    The U.S. Government had advised against unnecessary travel 
to Mexico, and all of the first cases of H1N1 flu in the United 
States involved people who had recently traveled from Mexico, 
and, unless they came into the United States illegally, they 
must have passed through a port of entry staffed by these 
employees.
    Those who work on the land borders saw their Mexican 
counterparts, often just steps away, wearing masks as they 
performed their duties. Some of these employees wanted the 
option of wearing a protective mask or respirator, but CBP and 
TSA have prohibited the wearing of masks unless an employee is 
in close contact with an ill traveler. Under that circumstance, 
a mask is required to be worn.
    Now, as soon as questions began coming in to NTEU from our 
members across the country as to whether or not they could wear 
respirators or masks, NTEU began trying to find out what the 
current policy was. We contacted CBP. We contacted TSA. And we 
contacted Homeland Security, and we got no answers.
    During this time, a DHS spokesperson was quoted in the 
press as saying, ``The Department of Homeland Security has not 
issued an order saying our employees cannot wear masks.'' And a 
CBP spokesperson was quoted saying, ``CBP officers and Border 
Patrol agents are provided personal protection gear which they 
may utilize at their discretion.'' But CBP and TSA were both 
clearly enforcing a prohibition, without exception, across the 
board. This was not on a manager-by-manager basis. This was 
clearly a directive from the head of CBP or the head of 
Homeland Security.
    Some statements from DHS that appeared in the press 
indicated that managers who were preventing the wearing of the 
masks were misinformed about the actual policy. The idea that a 
few managers were misinformed is clearly not accurate. NTEU 
heard from many, many employees from around the country. And, 
as you already noted, attached to my written testimony are 
affidavits from some of them relating instances of supervisors 
demanding that they remove their masks. Some of them are 
disturbingly threatening, and some include comments indicating 
that the reason for the prohibition was fear of alarming the 
public.
    The affidavits also confirm that the policy has not been 
disseminated in writing, and that employees' requests for 
written guidance on the issue have been denied.
    I trust that this committee will ensure that the employees 
who provided these affidavits will be free from any negative 
impact within the Department or the Bureau and their jobs.
    After researching possible scientific or medical reasons 
for prohibiting the optional wear of masks at CBT and TSA, NTEU 
is convinced that the reasons are not based on science or 
medicine but on public relations. In our view, avoiding 
unnecessarily alarming the public is not without merit. 
However, it is one factor that must be weighed against the 
potential health risks to employees, their families, and 
others. It is difficult to weigh the competing factors when 
there is a refusal to even acknowledge them.
    The first person to die in the United States from swine flu 
was a toddler; the second was a pregnant woman. Both had 
traveled from Mexico to the United States. Some of our members 
working on the Mexican border are parents of young children. 
Some may be pregnant or have a pregnant spouse. Some may live 
with family members who are particularly vulnerable. Does the 
risk of possibly alarming the public carry more weight than the 
unnecessary possible exposure to the swine flu of individuals 
in these situations?
    To my knowledge, NTEU members at ports of entry have 
followed the directives of their local managers, and they have 
worked diligently through this swine flu outbreak, even if they 
have requested and been denied the ability to wear protective 
masks for reasons of great concern to themselves and to their 
families. These employees deserve better.
    They deserve to know what the policies are. They deserve to 
know who is responsible for making those policies. They deserve 
to know the reasons for the policies. They deserve to have the 
opportunity to provide information to the policymakers. And, in 
this instance, they need the policy to be changed to reflect a 
rational balance that gives more weight to the importance of 
their ability to protect their health than to the potential for 
public alarm.
    I thank you very much for holding this hearing and for your 
views on this issue which you have made very clear throughout 
the day. And I look forward to any questions that you might 
have for me.
    [The prepared statement of Ms. Kelley follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Lynch. Thank you.
    Thank you both.
    President Kelley, your testimony in one part I think 
offered a very telling visual. You were describing security, 
either TSA or Customs/Border Patrol folks on our side with no 
masks--they were refused the right to wear masks--looking 
across at their Mexican counterparts, the Mexican security 
officers on the Mexican side of the border doing the same job, 
and they all had masks on.
    And it sort of points out the absurdity, I think, of the 
Department of Homeland Security's position on this that--and I 
have heard and seen in the testimony and the affidavits that 
have been submitted, a lot of the employees repeating the 
statement by management, DHS in this case, that we don't want 
to alarm the public, so we can't wear the masks. And so, they 
are worried about the economic impact or the perception of our 
folks wearing masks.
    And all I can say is, I remember when I first started to 
travel internationally, the first time I saw security officers 
with heavy weaponry in--it might have been Ben Gurion Airport 
in Israel or Tel-Aviv or it might have been Charles DeGaulle 
Airport in Paris, I forget--but seeing them there with Uzis and 
heavy weaponry sort of got my attention because we hadn't had 
it here in the United States. And it was a little bit of a 
surprise, but now you see it everywhere, and it has become the 
norm. And I think that if you travel in Asia now, folks wearing 
these respirators is a very, very common sight.
    And so the balance of interests here, clearly, falls on the 
side of protecting our Federal employees than worrying about 
what a dust mask might do to someone's impression or 
willingness to travel. I just think that it is a misplaced 
priority and that we have to get serious about protecting the 
people who protect our borders and our airports.
    Mr. Bonner, you highlighted in your testimony as well the 
distinction that some of your border agents were given the 
right to voluntarily decide. They gave them their own 
discretion to wear masks, but other employees were not, that 
you work in conjunction with or in the same area with. Can you 
identify any reason that might be the case for any facts that 
might mitigate to that type of policy?
    Mr. Bonner. I think that President Kelley touched upon it 
when she said it was mainly for public perception reasons. The 
Border Patrol by and large operates in the shadows. The only 
time you encounter us along the immediate border is if you are 
trying to enter the country illegally. We do operate traffic 
checkpoints on certain highways, not a large number of agents 
engaged in that activity. But even in those areas, we have not 
heard reports of agents being prohibited from wearing it. But, 
obviously, it is a different universe of people that you are 
encountering.
    For example, if you are up in Oceanside, CA, most of the 
people that you encounter have not crossed the border. So it is 
a different threat level, so most agents don't feel the need to 
wear a mask in those situations. Now, if they were in an area 
right at the border, I am sure they would be viewing things a 
lot differently.
    Mr. Lynch. Ms. Kelley, and Mr. Bonner, I guess this is a 
fair question for each of you. What type of a response have you 
had from these different agencies. You are both representing 
significant numbers of employees that are involved in this 
activity. What has been your experience with the response of 
the agencies who are responsible for this policy or absence of 
a policy?
    Ms. Kelley. I have received no written response from the 
Department of Homeland Security. I have received no written 
response from the Administrator of TSA. And I received a 
written response last night from the acting commissioner of CBP 
which, in my view, was a nonresponse. But, I actually have a 
letter that I guess intends to respond to my inquiry and my 
request that they make clear whether there is or is not a 
prohibition. I asked them to put that in writing, and they to 
date have not done that.
    Mr. Lynch. Mr. Bonner.
    Mr. Bonner. Similarly, AFGE wrote to TSA and Homeland 
Security and has yet to receive a response.
    Mr. Lynch. OK. The committee is actively considering 
legislation. You know, it is not my first choice. I would 
rather have this done in a regulatory fashion by the folks that 
are on the ground. You know, I don't prefer legislation. It is 
cumbersome, takes a lot of energy, a lot of time. But I see no 
signals coming from these agencies that there is going to be 
any type of change soon.
    So I discussed it with the Members who are here today. They 
think we need to proceed, and so do I.
    What are your own thoughts on undertaking these changes 
legislatively instead of--I know you are a collective 
bargaining agent for a lot of these employees, each of you. 
Talk to me about the two processes, and do you think that we 
are at that point? With the lack of response and the lack of 
accountability, do we have to go this route?
    Ms. Kelley. If it has to come to that, obviously NTEU would 
be glad to work with the committee on whatever that it would 
require.
    I do have to say I think it's very disappointing if it has 
to come to that. The first day that I became aware of this as 
an issue, I really believed it was just a misunderstanding or a 
miscommunication and that if I made a call, that of course they 
would make it clear that the employees could wear the mask at 
their discretion.
    Mr. Lynch. You would think.
    Mr. Kelley. That is what I thought. I thought this was 
going to be an easy one. That was on day one.
    And then I started getting the finger-pointing, well we're 
waiting for this one to do this and that, and can you give us a 
little time?
    And by the 4th day, I was getting a little impatient. And 
then I started talking to everybody that everybody was pointing 
the fingers at in the hopes that someone would step up and do 
the right thing.
    And here we are, I guess about 18 days later, and no one 
has stepped up yet to do the right thing. And no one has even 
been willing to be upfront about why--you know, they say, on 
the one hand, even when I listened to the testimony of the 
earlier panel, Ms. Duke said--and I wrote this down.
    First she said, and I believe I heard this right, the 
voluntary wearing of masks was not warranted, and that was 
Secretary Napolitano's decision.
    Then later she said there was no Department-level 
prohibition against wearing the masks. Well, that is a little 
bit different.
    And then the third one I heard was individual supervisors 
were allowed to make the decisions, which is--I wrote some 
notes here that I won't repeat to you about my thoughts about 
that, but I know that is absolutely false because I have talked 
to our members at airports across the country and TSA and at 
ports of entry across the country, including the southwest 
border and anywhere that a Mexico flight comes in, and there 
was one very clear oral directive given and that was ``no masks 
are to be worn.'' They were toward that in musters. No one 
would put it in writing, and no one would take responsibility 
for it.
    So I think it would be a shame if it has to be legislated, 
that someone would not just not step up and do the right thing. 
But if that is what it takes, NTEU will be glad to work with 
you to help make that happen and avoid this in the future.
    I cannot believe that employees would ever be put in this 
position again. And from what everyone says, this will happen 
again, whether it's in the fall or in 2 years or 5 years, and 
we should not ever have to have this conversation again.
    Mr. Lynch. Mr. Bonner.
    Mr. Bonner. I think we may be at that point.
    After the SARS epidemic 6 years ago, the agencies were 
directed to come out with assessments, guidance. CDP came out 
with an assessment estimating that 40-50 percent of its work 
force would be taken out of service due to a pandemic with the 
proper medical response.
    I would say that nearly all of the work force would be 
taken out of the equation with nonsensical procedures in place, 
waiting until it's too late.
    And one of the disturbing parts of that guidance, that 
draft guidance, was a call for greater flexibility to 
discipline people for taking sick leave when they were affected 
by that. It was just mind numbing to see their take on how to 
deal with this, rather than protecting the employees and 
ensuring that they did not get sick, that when they were sick--
I mean, one of the worst things that you can do is show up 
sick, because then you're going to infect your coworkers and 
almost guarantee that they will become ill.
    Mr. Lynch. One of the, the following panel, I'm going to 
ask them to address some of the medical aspects of this. But I 
would like you to work with us.
    You've already raised a number of points, the sick leave. I 
understand from the testimony that I received directly to the 
committee, there were some workers' compensation issues where 
employees who came down sick with the flu, their illnesses were 
contested because they said they could have gotten them at home 
instead of inspecting 3,000 workers at the border coming in 
from Mexico. So, you've got these absurd cases, not to mention 
what it does to morale.
    Mr. Bonner. And we would be, AFGE along with NTEU, would be 
more than happy to work with the subcommittee in drafting such 
legislation and moving it along.
    Mr. Lynch. I appreciate all of the work you've done, both 
of you, in representing your employees and the people that are 
on the ground doing this. I got a lot of evidence in from your 
folks and from you as well, and I think you've got a good 
perspective of things on the ground.
    So we would welcome your involvement in drafting the 
legislation going forward, because the silver lining on this is 
we may have dodged a bullet here with this experience. It was 
not lethal. But that doesn't mean, and the following panel I 
think will elucidate on this, the following strain won't be 
lethal. And what would happen then if we had this same 
nonsensical policy in place and folks started dropping out of 
their positions on the border, started infecting their own 
families and those communities? You could see this whole thing 
snowballing.
    And, my family is very much involved in the Post Office. 
And I remember when they had the anthrax attacks on the Post 
Office, and my sisters, who both had young children at the 
time, were worried about, should I go into work, because if I 
get some of this stuff on my clothes, I will come back and 
infect the kids?
    It's the same dynamic here. It takes a certain amount of 
courage under the situation, and especially, imagine if the 
rate of fatalities were elevated here. Now you've got folks who 
are Custom and Border Patrol and TSOs and ICE employees 
responsible for working on the border. They know there's a 
threat there. They know there's a likelihood that they'll be 
exposed and bringing that back to their families. It's tough 
enough to just to go and do your job, never mind trying to do 
it without adequate protection and without the support of your 
employer.
    It's just disheartening given the service that these folks 
are rendering to their country.
    And I would ask you to work with our committee, help us 
draft something that is tight enough to address the actual 
situation on the ground for especially those frontline 
employees. And we welcome your participation on that.
    There may be some followup questions in writing from some 
of my colleagues who are not here. If you would, we would 
welcome your responses in writing as well. I want to give each 
of you an opportunity, if there have been aspects of this that 
we haven't covered during the hearing that you want to 
illuminate a little bit, Mr. Bonner, please feel free.
    And Ms. Kelley, if you have anything.
    Mr. Kelley. I would just add that these frontline employees 
who we have been talking about, because of their work, really 
just deal with thousands of employees or thousands of travelers 
every day; these are professional employees who exercise 
judgment every minute that they are on the job. So why not 
respect their judgment and let them make the judgment as to 
whether or not they think that they should wear a mask? We have 
no idea how many employees would want to do that. It might not 
even be the majority. But if someone wants to exercise that 
right, why deny them?
    And I do have to say, I hesitated from putting in my 
original testimony to not digress from the subject, which is 
employees' rights to wear the masks at their discretion.
    But this issue of morale that you raised, Chairman Lynch, 
is a very, very real one for every employee, for every job, and 
every agency. But in the Department of Homeland Security 
employees have rated them 29th out of 30 agencies from a morale 
perspective every year that the survey has been given. And this 
is the kind of thing that the employees remember. This is the 
kind of thing that they point to and say, what kind of an 
employer is this that I work for who doesn't care? They can put 
out all of the statements they want about caring about 
employees, but actions really speak louder than words, 
especially on issues like this.
    Mr. Lynch. Absolutely, I mean this is a perfect 
illustration I think in terms of whether you respect the 
service that the workers render and whether we're giving them 
the protection that they deserve. So I agree with you heartily.
    Mr. Bonner, anything in conclusion?
    Mr. Bonner. I think that we've pretty much covered the 
waterfront on what the problem is and also, unfortunately, what 
needs to be done. Since there appears to be a real shortage of 
common sense within this bureaucracy, it appears that the 
legislature is going to have to step in and force that. And I 
know that the conventional wisdom is you cannot legislate 
common sense, but at least we can put procedures in place to 
force these bureaucracies to do the right thing, not just for 
their employees but for the greater public good.
    The greater public good is not well served if the employees 
who are responsible for protecting us become transmission 
agents for deadly diseases, spreading it not to just their own 
families but well beyond their own communities and facilitating 
a pandemic event.
    So thank you very much, once again, for convening this 
hearing.
    Mr. Lynch. Thank you we will continue to work together. We 
appreciate your input, and Jill here will be the point person 
for the committee in drafting this legislation so you can work 
with her.
    Thank you very much for your willingness to testify. Sorry 
about the long wait. But we really do appreciate your 
testimony. Thank you.
    If we could possibly have the third panel, final panel.
    Welcome. It is the custom of the committee to swear in all 
witnesses who are to submit testimony. Could you please raise 
your right hands and repeat after me?
    [Witnesses sworn.]
    Mr. Lynch. Let the record show that both of the witnesses 
have answered in the affirmative.
    I will offer a brief introduction of our witnesses, and 
then each will be allowed to present an opening statement of 
about 5 minutes in length.
    Dr. Thomas F. O'Brien has been a consultant in infectious 
diseases for over 20 years and the medical director of the 
Microbiology Laboratory at Brigham and Women's Hospital. He 
also serves as an associate professor of medicine at the 
Harvard Medical School; codirector of the World Health 
Organization Collaborating Center for the Surveillance of 
Antimicrobial Resistance and vice president of the Alliance for 
the Prudent Use of Antibiotics [APUA].
    Dr. Jeffrey Levi is the executive director of Trust for 
America's Health, where he leads the organization's advocacy 
efforts on behalf of a modernized public health system. Dr. 
Levi is also an associate professor at the George Washington 
University Department of Health Policy where his research has 
focused on HIV/AIDS, Medicaid, and integrating public health 
with the health care delivery system.
    Welcome, gentleman.
    Dr. O'Brien, I would like to give you an opportunity to 
offer an opening statement for 5 minutes.

  STATEMENTS OF THOMAS F. O'BRIEN, MD, VICE PRESIDENT, GLOBAL 
   ALLIANCE FOR THE PRUDENT USE OF ANTIBIOTICS, AND DIRECTOR 
MICROBIOLOGY LABORATORY, BRIGHAM AND WOMEN'S HOSPITAL, BOSTON, 
 AND ASSOCIATE PROFESSOR OF MEDICINE, HARVARD MEDICAL SCHOOL; 
    AND JEFFREY LEVI, PH.D., EXECUTIVE DIRECTOR, TRUST FOR 
AMERICA'S HEALTH, AND ASSOCIATE PROFESSOR, DEPARTMENT OF HEALTH 
              POLICY, GEORGE WASHINGTON UNIVERSITY

               STATEMENT OF THOMAS F. O'BRIEN, MD

    Dr. O'Brien. Thank you very much, Chairman Lynch and 
subcommittee members, for the opportunity to testify on behalf 
of the Alliance for the Prudent Use of Antibiotics concerning 
how best to protect frontline workers and the public during a 
crisis such as the current influenza epidemic--pandemic.
    I will just say briefly, the Alliance for the Prudent Use 
of Antibiotics was established in 1981 as an independent public 
health organization with a mission of strengthening society's 
defenses against infectious diseases by promoting appropriate 
use of antibiotics and by controlling antimicrobial resistance.
    And I think use of antibiotics--I was pleased to hear that, 
in the discussion of this, Mr. Connolly brought up the issue of 
agricultural use of antibiotics, which is one of the things 
we've tried to restrain as part of the general effort to keep 
strains of bacteria viruses from becoming resistant.
    Based in Boston, the APUA has affiliated chapters in over 
60 countries, and it is the world's largest network that is 
totally dedicated to education and research concerning 
antibiotic resistance with a goal of preserving these 
lifesaving drugs.
    That particular interest plays into an influenza outbreak 
in two ways. One is that there is concern about resistance in 
Tamiflu, or potential for resistance in Tamiflu, or the 
antiviral drugs themselves, which is a concern moving forward. 
But another one that has to be kept in mind is that, should 
there be a very severe influenza outbreak with cases of viral, 
a lot of cases of viral pneumonia, in the past, there is 
evidence that the mortality of these illnesses has been greatly 
magnified by superimposed bacterial infections and, in 
particular, staphylococcal bacterial infections.
    And the fact that we now have staphylococcal--multi-
resistant staphylococci circulating, not just in hospitals but 
now, in recent years, in the community as well, would mean that 
the resources, the drugs available to treat such pneumonias 
would be diminished if antibiotic resistance increases to the 
point where, as in some past years with staphylococci, there 
have been virtually no drugs left for that treatment. So this 
is a particular concern of ours that relates not--hopefully not 
to the influenza we have had or even to the coming influenza, 
but is a potential threat, added threat, to a severe influenza 
outbreak.
    And I might say that one of the problems about viral 
influenza, just thinking about the discussion we've been 
hearing, and I think it plays into some of these questions of 
how we respond, one of the problems is that, of all of the 
contagious illnesses, there's none that is as wildcard or as 
unpredictable as viral influenza. Most other things, most of 
the other major infections, there is a way to project forward 
what will happen. With the influenza virus, that is, as I think 
has been demonstrated over and over again, is very hard to do. 
So that creates a level of uncertainty that we don't encounter 
with the other diseases.
    I would say that we've been impressed by the good work that 
has been done by our public health agencies, both National and 
State public health agencies, in recent years in building up 
infrastructure to deal with these problems and to deal with the 
lack of predictability. And I think, again, in their response 
has become much more sophisticated, and I think the 
congressional support they have had in getting better funding 
for their programs has helped enormously in putting us way 
ahead.
    It's helped, also--or will help, I think--the general 
support for biomedical education that the Congress has been 
very good at in recent years, will help in the broader 
understanding, given the capabilities, biomedical capabilities, 
now of nucleotide sequencing, molecular modelling and the new 
disciplines that are coming in, I would be willing to predict 
that going forward in another 10 years, that viral influenza, 
which will still be with us with the new threats, will be much 
more predictable. We will be able to pick up earlier new 
strains. We will be able to get a sense which way they are 
going. I think, by this broad biomedical research, we will 
enhance our ability to get out ahead of them sooner and to have 
a proper response or make vaccines faster and perhaps make 
better drugs and deploy them faster.
    So I think a lot, with all of this, we don't want--I would 
like to point out how much infrastructure has been built, both 
in public health and basic bioresearch, to give us a better 
control of all of these issues going forward. And as you can 
imagine, even in the issues that have been discussed here, 
better predictability would help a lot.
    Just on the subject, it just occurred to me on the subjects 
that have been discussed here about the workers protection and 
the voluntary masks and so on--it's not my field--but just one 
thing that occurred to me that might be worth mentioning is 
that it may be that some of Undersecretary Duke's advisors, 
public health epidemiologists, have a principle in mind that, 
in an impending epidemic, it's important to put some restraint 
on panic, not to allow people to be overly panicked because 
that diffuses resources and complicates everything.
    And that may have been an element, as I say, an element and 
somehow it got into the area of mask wearing. And it just 
occurs to me that there might be a way to deal with that in the 
sense that it is a public relations issue, as you point out; it 
is a cultural issue, the understanding of what a mask-wearing 
is. And it could be destigmatized by careful public health--
with the media, it would be fairly easy to get the word out 
that masks are precautionary, are conditional, provisional, and 
that people encountering mask-wearing people doesn't mean that 
something terrible is about to happen. It's just a cultural 
response to a problem that people can adjust to.
    And as you pointed out, we've adjusted culturally to seeing 
armed guards in airport security, and I think in other 
cultures, Asia, as the ranking member pointed out, in Asia, 
mask-wearing does not trigger--would not be seen as a trigger 
of public concern because it's kind of random and haphazard, 
and people do it anyway.
    It just occurred to me that maybe that is a small element 
that could be introduced to this that might--and if it were 
true that some of the public health concerns were that, that 
might be minimized by--of paying attention a little to better 
cultural adaptations to mask-wearing.
    [The prepared statement of Dr. O'Brien follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Lynch. Thank you.
    Mr. Levi.

                STATEMENT OF JEFFREY LEVI, PH.D.

    Mr. Levi. Thank you, Mr. Chairman, and thank you for 
holding this hearing.
    I want to depart a little bit from my prepared remarks just 
to address some of the specific questions around public health 
guidance around mask wearing.
    I think it's really important in the context of a public 
health emergency for all agencies of the Federal Government, 
including the Department of Homeland Security, to consistently 
and clearly follow CDC and OSHA guidelines for their employees, 
both because it's the right thing to do and because it's a 
model for other employers.
    It's unfortunate that, because of all of the voting, that 
there wasn't an opportunity for the CDC, I think, to explain in 
more detail the rationale and the science behind their 
guidelines, which, as I understand it, do not currently call 
for the routine use of N-95 respirators. And so it's not clear 
that the Department of Homeland Security was violating what is 
current public health guidance.
    And I think there are opportunities in this situation to 
pass legislation that could better protect Federal workers, and 
actually, all workers. But I think we need to take care in 
drafting such legislation so that the policy that is legislated 
is both based on the science and flexible enough that we don't 
box ourselves in as the science evolves.
    Our understanding, for example, of what are appropriate 
precautions in the context of an influenza epidemic has been 
changing over time in part because of the investment in 
research that has been occurring over the last several years.
    It would be unfortunate if we mandated certain types of 
approaches to disease control in legislation that may be 
outstripped by improvements in our understanding in the 
science.
    So I hope that we can find a balance here between making 
sure we're doing everything we can to protect workers without 
substituting, I think, for--or restricting ourselves to current 
understanding of the science as science may be evolving.
    And I think that, to me, brings me to a series of questions 
that we posed in our testimony today that addresses broader 
questions, including but beyond the use of N-95 masks, and I 
would like to very briefly put some of those questions on the 
table.
    The first and probably most basic is, have the Federal 
agencies updated and reviewed their strategic plan, their 
implementation strategies associated with the National 
Strategic Plan? The current Office of Personnel Management 
guidelines, which covers the entire Federal Government, 
including DHS, has not been updated since 2006. And a lot has 
happened since 2006 in terms of the guidance that CDC has put 
out, that OSHA has put out, and those should be incorporated 
into the OPM policies.
    And in fact, you know, it's not just the DHS workers that 
we need to be concerned about. There is a wide range of Federal 
employees who are consistently at risk, including those who are 
working in health care facilities, who are at the greatest 
risk, whom we need to make sure are being protected.
    For critical employees, I think that we clearly need to 
know, in addition to the issue of N-95 masks, what other 
workplace changes can be made to promote social distancing. But 
also we need to think about the CDC recommendations around 
stockpiling of antivirals. CDC recommends not just that 
agencies, that employers, stockpile antivirals for treatment 
but also for prophylaxis, so employees who are going to be 
routinely exposed to the virus, which could include some of the 
agency employees but certainly health care workers, that the 
employers stockpile sufficient drugs for prophylaxis.
    To the best of my knowledge, we do not have--the individual 
agencies have not done that yet, except in some rare occasions. 
And the Strategic National Stockpile has no courses in its 
supply for that kind of prophylaxis. So that would be an 
opportunity to address legislatively or through the 
appropriation's process.
    Similarly, if we move toward broader use of masks, whether 
it's N-95 or a face masks, again have agencies stockpile that? 
There is a tremendous production capacity problem, and if we 
are going to move toward use of these, and there may be a point 
in the context of a pandemic where we would want workers to 
routinely wear N-95 masks or surgical masks, we don't have 
enough in the stockpile to make that happen. So the guidelines 
will be meaningless if the Federal Government hasn't taken 
steps to make sure we have those things available.
    I think the last point that I would want to make is broadly 
speaking around sick leave. For health care workers--and I 
would say health care workers means people who are working in 
VA and DOD hospitals, in prison hospitals, or investigators 
working for CDC, but also those people that we ask to volunteer 
in the context of the pandemic and the various medical and 
volunteer corps who come forward, we need to make sure that we 
are providing them with adequate protection and that when 
people do become sick in the context of their work, because 
they have placed themselves at risk, that they are not using up 
their sick leave but that the Federal Government is making sure 
that they are continued to be paid, and in fact, the copayments 
associated with their care or through their Federal insurance 
will also be covered.
    That is a broader issue around sick leave, in terms of even 
following CDC guidelines to stay home if someone in your 
household is sick. We need a lot of flexibility from OPM. We 
need it broadly from other Federal employers, employees--from 
other employees in the private sector as well.
    Those are areas that I think could together become a 
comprehensive package that would make, I think, very useful 
legislation in assuring, in a broad sense, we're protecting 
Federal workers in the context of a pandemic or some other kind 
of public health emergency.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Levi follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. Lynch. No, Thank you.
    Thank you both.
    I would want to note that I agree, the CDC analysis would 
be helpful. We've received some of that in testimony, quite a 
bit, in fact. But it seems, despite their analysis, there was a 
decision by Department of Homeland Security to allow some 
employees in the face of that analysis to wear the masks and 
deny 50,000 other employees the right to use the same masks. So 
they interpreted it, and then they took two different 
responses, which was very difficult to explain.
    Mr. Levi. From a public health standpoint, the most 
important thing to do in a crisis like this is to be 
consistent. So either be very consistent in adhering to the CDC 
guidelines, or if you're changing it, then change it 
consistently across the Departments.
    Mr. Lynch. Right.
    One of the other questions I had was there seems to be a 
policy on the part of DHS and Customs and Border Patrol as well 
as the Transportation Security Agency to have employees act as 
sort of an inactive surveillance. They are not being given 
gloves. They are not being given sanitizer. They are not being 
given masks, either N-95 or dust masks. And yet they are being 
asked to conduct passive surveillance of passengers and people 
crossing the border.
    From your standpoint, is there wisdom in that? I know they 
have this 6-foot rule here somewhat. Is that a real 
distinction? I'm not sure if it's----
    Mr. Levi. It is not clear to me--Dr. O'Brien may be better 
able to answer--whether in the context of passive surveillance, 
what level of risk there is of whether you actually need to 
wear gloves at a time like that. I think, clearly, for lots of 
reasons that have nothing to do with flu, if workers want to 
wear gloves or certainly having hand sanitizer available is 
something that is very prudent under any circumstances.
    Mr. Lynch. These folks are also being asked to wand these 
people, check these people--they are in close physical contact 
with these people as well, but they are also being asked to do 
this sort of analysis.
    Dr. O'Brien. I'm not quite sure that I understand what the 
passive surveillance is. They are not being asked to test the 
level of infectivity by getting it themselves, I hope. But I 
don't think that is the issue.
    I think, just backing up a little bit, that the problem 
again is--or a huge element is the unpredictability. If it's a 
mild disease and very low level, it's sort of always present. 
Or it comes every year, and there are a lot of fatalities every 
year from viral influenza, and it happens over various period 
of time. There is almost no uniform level of protection for 
that. It's too random.
    On the other hand, in a very serious, focused, short-term, 
highly lethal type of influenza, you'd want to use everything 
possibly that you could. As, for example, was done with SARS 
and was effective in SARS. And SARS, it was contained at a time 
when really I think the expectation was that it could not be 
contained.
    So there is a range of appropriate responses that CDC and 
guidelines are trying to adjust to. And one of the problems is 
the nimbleness with which you can adjust. And I'm thinking that 
maybe the technology is at hand to adjust these more quickly as 
circumstances change. And I can't translate that into what it 
means day to day for who uses what, but I think that kind of 
the general problem that is being dealt with here is trying to 
get the right degree of alertness for this week's risk.
    Mr. Levi. And I think to take it totally out of this 
context, we saw in the CDC's evolving guidance surrounding 
school closures, that at the beginning of the outbreak, there 
was very serious concern because we didn't know how lethal this 
was going to be. And as we learned more and had more experience 
and recognized that kind of approach was probably not going to 
be effective in containing the spread, and combined with the 
fact that the virus turned out in this stage not to be as 
lethal, that CDC backed off from that recommendation, and 
schools are remaining open.
    And I think that is part of the flexibility that we need to 
be able to build into whatever policy approach is ultimately 
made. We need to be consistent across Federal Government at 
each stage, but the answer or the approach that you take at the 
beginning of the outbreak may not be the one that you would 
want to consistently maintain throughout the outbreak.
    Mr. Lynch. Let me ask you, Dr. O'Brien, in your testimony, 
you state that, ``it's necessary to link the U.S. domestic and 
the international public surveillance efforts.'' What does it 
say or what type of assessment would you give this recent 
experience? It seemed that it took maybe a month between the 
time at which the H1N1 epidemic was identified in Mexico, 
Mexico City, and the time at which we, as a government, asked 
our public health agencies to get involved, to engage. There 
was, I would say, about a month's passage of time there.
    You talked about the need for coordination here because 
this is obviously global. How would you grade our response, at 
least in this most recent iteration of flu?
    Dr. O'Brien. I have to say, first of all, that I wasn't 
really focused on the time line as very carefully. That wasn't 
my major concern. But I had the impression that the response 
was really quite good and quite prompt; that from the time it 
could first be identified that this was a new virus, which is 
critical thing, and second, it was one to which we don't have 
immunity. It's enough different from the previous influenza 
viruses so we don't immunity, and that there were multiple 
cases turning up. And the early testimony--the early evidence 
from Mexico actually overestimated the virulence of this--that 
by the time that came in over a week or two, it struck me that 
CDC was very alert, and Richard Besser, as pointed out, I think 
maybe being concerned that they had overreacted, had said you 
have to do this, you have to move very quickly. You only have 
one chance to get ahead of these things. You have to overreact.
    And I think WHO, again, sensitized--I mean, they have had 
some training in recent years. The general director of WHO was 
in China when SARS broke out, and the Chinese response to that 
was really very good, and also I think was responsible--was in 
Hong Kong and was the responsible officer for the original, 
dealing with the flocks of chickens with the avian influenza. 
They went to top level alert, as I recall, almost as soon as 
they could.
    So I think, whether it's ideal or not, national and global 
response, was better than it has been previously; Was quicker 
and more alert than it has been previously.
    Mr. Lynch. Let me ask you on this point, each of you.
    On the one hand, you had CDC and DHS saying it was not 
medically necessary to use masks. On the other hand, you had 
the World Health Organization going to level 5, one level short 
of pandemic. It seems to me there is some inconsistency there. 
Is that because I'm naive and not understanding that?
    Mr. Levi. That is a really good point and one of the two 
lessons from this experience in terms of pandemic levels. One 
is the U.S.'s plan tracks WHO levels but actually doesn't start 
gearing up on its plan until we reach WHO level 6, which is not 
to say that lots of stuff wasn't put in place. I would agree 
with Dr. O'Brien that the public health response was phenomenal 
in the situation, because the U.S. plan assumes that the 
initial outbreak will be somewhere far away from the United 
States, and that didn't turn out to be the case. So lots of 
triggers would not have been pulled if people had followed the 
U.S. plan originally.
    The problem with the WHO stages is it does not make a 
distinction whether something is virulent or not virulent. So 
something can be pandemic, meaning it's a novel virus and it's 
worldwide, and not be terribly lethal and not be any worse than 
a seasonal flu, which may, at least so far is not the case; it 
may change but is certainly not the case now.
    We need in those stages to be able to distinguish, which is 
not to say that you don't want to raise your awareness, it 
doesn't mean you don't want to raise your response, but I think 
there's a communications problem there that when you reach 
level 5, we're one step away from a full-blown pandemic, that 
we need to be able to distinguish when it is virulent or not 
virulent because I think that creates a very different kind of 
public response and a different kind of policy response.
    Mr. Lynch. Dr. O'Brien.
    Dr. O'Brien. I was going to say that Chairman Lynch made a 
very good point that has other implications about the mismatch 
between the high level response and low level. Because the high 
level response, the CDC, the World Health--the highest levels 
of response were so quick this time, it may have made it 
clearer and this, what we've heard about today, may have made 
it clearer, that once you have that understanding, that 
alertness triggered, the cascade of ramifications at all levels 
of society is enormously complex in terms of what are you going 
to do about school closures and what does that mean about the 
school budget and today's subject is a perfectly good example 
of that. As you've pointed out, there has never been an 
influenza pandemic for almost a century now. There's never been 
one that has started close to the United States before.
    So that is new. So the need for this country to be involved 
instantly almost in all of these levels points out that people 
have to start thinking about a master plan, about all of the 
details. I mean, this isn't my field, and I am really not an 
authority on what has been done on this.
    But just from what I've heard, it sounds as though there 
needs to be attention to, as you draw out a chart of all of 
this, what happens at what level and how quickly and who 
decides what are all of the options. It strikes me there may be 
room there for more systemization.
    Mr. Lynch. I agree.
    On behalf of Mr. Connolly and also the ranking member, they 
indicated that they may want to submit questions to you in 
writing. And then, obviously, you would be given a reasonable 
period within which to respond in writing as well. But in their 
absence, I just want to thank you for your willingness to come 
before the committee, offer very thoughtful testimony.
    We appreciate your patience while we have had all of these 
votes across the way. But thank you very, very much for your 
willingness to testify, and we really appreciate the work that 
you've done on this.
    Thank you.
    [Whereupon, at 5:26 p.m., the subcommittee was adjourned.]

                                 
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